Citation Nr: 21031391 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 18-04 344 DATE: May 21, 2021 REMANDED Entitlement to service connection for chronic lymphocytic leukemia (CLL) and diffuse large B-cell lymphoma is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1961 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim. He filed a notice of disagreement (NOD) in September 2016 and a statement of the case (SOC) was issued in November 2017. He perfected a timely appeal in January 2018. In February 2021, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. The Board notes that the Veteran's claim on appeal has been identified as 'entitlement to service connection for CLL.' However, a review of the record demonstrates that the Veteran has asserted entitlement to service connection for both CLL and diffuse large B-cell lymphoma, with which he was concurrently diagnosed. See the Veteran's statement dated August 2020 and the private treatment records dated February 2014 and January 2015; see also the VA memorandum to the VA Under Secretary for Health dated May 2020. Thus, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has rephrased the issue on appeal to include both CLL and diffuse large B-cell lymphoma. 1. Entitlement to service connection for CLL and diffuse large B-cell lymphoma is remanded. The Veteran contends that his CLL and diffuse large B-cell lymphoma are the result of exposure to ionizing radiation during his active service, to include serving aboard nuclear submarines (U.S.S. Seadragon and U.S.S. Greenling), as well as while stationed at a nuclear reactor training facility in Idaho Falls, Idaho. See the Radiation Risk Activity Sheet dated May 2013. He has alternately contended that his diagnosed disabilities are the result of his exposure to herbicides while serving aboard the U.S.S. Seadragon in the waters off the Republic of Vietnam. See the Veteran's statement dated January 2020. Initially, it is undisputed that the Veteran was exposed to radiation while serving aboard nuclear submarines (U.S.S. Seadragon and U.S.S. Greenling), and while stationed at the nuclear reactor training facility in Idaho Falls. See the VA memorandum to the VA Under Secretary for Health dated May 2020. A dose estimate from the Naval Dosimetry Center was received in December 2019 and has been associated with the Veteran's VA claims file. The Veteran's claims file was not ultimately referred to the VA Under Secretary for Health because the Veteran's occupational exposure to ionizing radiation of 01.470 REM did not meet or exceed the annual dose estimate of 5 REM in one year or 10 REM in a lifetime. Instead, the Executive Director of Compensation Service (Director) provided an opinion in which she concluded that, based on the provided dose estimate, "it is not likely that the Veteran's CLL is a result of exposure to ionizing radiation during service." See the Memorandum from the Director dated June 2020. As noted above, the Board has expanded the issue on appeal to include diffuse large B-cell lymphoma, which is a radiogenic disease under 38 C.F.R. § 3.311(b)(2)(i) and therefore must be referred to the Under Secretary for Benefits for consideration. Although an opinion was obtained from the Director in June 2020, she limited her opinion to the diagnosed CLL and did not address the etiology of the diagnosed diffuse large B-cell lymphoma. Accordingly, given the expansion of the issue on appeal as well as the limitations of the June 2020 memorandum opinion from the Director, the Board finds that this matter must be remanded in order to forward the Veteran's VA claims file to the Under Secretary for Benefits for an opinion pursuant to 38 C.F.R. § 3.311(b)(1). With respect to the Veteran's contentions of herbicide exposure, VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116, 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide agent exposure include CLL and non-Hodgkin's lymphoma. The clinical evidence in this case clearly reflects that the Veteran was diagnosed with CLL, as well as diffuse large B-cell lymphoma. See the private treatment records dated February 2014 and January 2015. As to in-service herbicide agent exposure, the Veteran has recently contended that, while he was stationed aboard the U.S.S. Seadragon, the ship was deployed to the Gulf of Tonkin during the Vietnam War. See the Veteran's statement dated January 2020. To this end, the Veteran's service personnel records reflect service aboard the U.S.S. Pickerel, the U.S.S. Seadragon, and the U.S.S. Greenling. At the time the RO last considered the Veteran's claim, the presumption of exposure to herbicide agents provided under 38 U.S.C. § 1116 was extended only to those Vietnam Veterans who served on the landmass or inland waterways of the Republic of Vietnam. Since that time, in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit has held that "service in the Republic of Vietnam" under section 1116 includes service in the 12 nautical mile territorial sea of the Republic of Vietnam. Congress thereafter enacted the Blue Water Navy Vietnam Veterans Act of 2109, Pub. L. 116-23 (codified at 38 U.S.C. § 1116A9(c)) to codify the holding in Procopio. This legislation became effective January 1, 2020. The Board finds that the evidence of record is currently insufficient to confirm whether the Veteran served in the 12 nautical mile territorial sea of the Republic of Vietnam, and thus, is presumed to have been exposed to herbicide agents. These matters therefore must be remanded for the agency of original jurisdiction (AOJ) to undertake further development. The matters are REMANDED for the following action: (Continued on the next page) 1. The Veteran's VA claims file, to include personnel records, service and post-service medical records, lay testimony concerning the severity of his radiation exposure, dose estimate, and other pertinent documents, should be forwarded to the VA Under Secretary for Benefits for an opinion as to whether the Veteran's CLL and diffuse large B-cell lymphoma are etiologically related to documented in-service exposure to ionizing radiation, in accordance with 38 C.F.R. § 3.311(c). 2. Undertake the necessary development to determine whether the Veteran served within the 12 nautical mile territorial sea of Vietnam during his active duty, including during his tour of duty aboard the U.S.S. Seadragon, the U.S.S. Greenling, and the U.S.S. Pickerel. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.