Citation Nr: 21031738 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-39 395 DATE: May 24, 2021 ORDER Service connection for ischemic heart disease (IHD) is granted. REMANDED Service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), is remanded. FINDING OF FACT The Veteran has current ischemic heart disease that is manifest to a degree of at least 10 percent, and the evidence is at least evenly balanced as to whether he served in the 12-nautical-mile territorial sea of the Republic of Vietnam during the Vietnam era. CONCLUSION OF LAW The criteria for entitlement to service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1972 to November 1973 in the United States Navy, with additional service in the Navy Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. In May 2021, the Veteran testified before the undersigned during a virtual hearing. A transcript of the hearing is included in the electronic claims file. With regard to the characterization of the IHD claim on appeal, in a February 2011 final rating decision, the VA Regional Office denied the claim the basis that the Veteran was not presumed to have been exposed to herbicide agents in service and his IHD was not otherwise related to service. Under such circumstances, new and material evidence would generally be required to reopen the claim of service connection for IHD. However, since the February 2011 rating decision, the President signed into law the Blue water Navy Vietnam Veterans Act of 2019, which extends the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), which held that Veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam are entitled to presumptive service connection under 38 U.S.C. § 1116 so long as they meet the section's other requirements. In addition, the Act provides for special effective date rules with regard to claims, such as the current claim of service connection for IHD, where service connection is sought for diseases presumed service-connected in veterans exposed to Agent Orange that were denied based on lack of service in Vietnam and are not being granted based on such service. See 38 U.S.C. § 1116A (c)(2). Those rules indicate that such a claim should be addressed on a de novo basis rather than as an application to reopen. The Board has characterized the claim here accordingly. With regard to the characterization of the COPD claim on appeal, the VA Regional Office denied service connection for the claim in July 2012 and October 2012 rating decisions. In the July 2012 rating decision, the claim was denied due to a lack of evidence of a current disability. In the October 2012 rating decision, the VA Regional Office noted a current diagnosis of COPD and found that the Veteran was exposed to asbestos in service, but denied the claim due to a lack of evidence showing that the current disability was related to service. Within one year of these rating decisions, VA received a new October 2012 VA treatment record of Dr. B., wherein he noted the Veteran's in-service asbestos exposure and opined that the COPD may be related to the exposure. This record constitutes new and material evidence that was received during the one-year appellate period following the July 2012 rating decision. As such, the July 2012 decision is not final and the current claim has not been characterized as an application to reopen. 38 C.F.R. § 3.156. 1. Service connection for ischemic heart disease is granted. VA provides disability compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The law further provides that a veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, certain diseases, including ischemic heart disease, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The Blue Water Navy Vietnam Veterans Act of 2019 created a new section of the U.S. Code, 38 U.S.C. § 1116A, which provides that VA must treat a location as being "offshore" of Vietnam (and therefore falling within the presumption of herbicide agent exposure) if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting particular points. The law provides specific latitudes and longitudes in this regard. Here, while the evidence as to whether the Veteran had service within the 12 nautical mile territory contemplated by 38 U.S.C. § 1116A is not entirely clear, the Board finds that a remand for this development is avoidable. The Veteran's personnel records show that he served on the U.S.S. Ticonderoga from approximately May 1972 to November 1973. Deck logs are of record and on Wednesday, June 28, 1972 in particular, the latitude and longitude coordinates of the ship indicate that it was likely present within the 12 nautical mile territory defined by U.S.C. § 1116A(d). Further, a September 2010 response from the Personnel Information Exchange System shows that the U.S.S. Ticonderoga was present in the "official waters" of Vietnam between June 22, 1972 and July 1, 1972. A February 2011 response from the former Joint Services Record Research Center (JSRRC) additionally shows that the ship operated in the "combat zone" of the Republic of Vietnam during a 25-day period of antisubmarine warfare operations in the Gulf of Tonkin from June 8, 1972 to July 3, 1972. While the term, "combat zone" was not defined in the JSRRC response, the Board takes judicial notice of the fact that an April 1965 Executive Order designated Vietnam and waters adjacent thereto as a "combat zone" for tax and pay purposes. The Executive Order provided measurements of latitude and longitude close to those defined in 38 U.S.C. § 1116A(d), supporting that the "combat zone" in which the Veteran served included areas within the 12 nautical mile territory as contemplated by 38 U.S.C. § 1116A. See Exec. Order No.11216 (1965). Additionally, the Veteran submitted a photocopy of a letter written to his mother, postmarked from the U.S.S. Ticonderoga and dated from July 1972, wherein he stated that he was in Vietnam. He also submitted a May 1972 newspaper clipping from his local newspaper, stating that the U.S.S. Ticonderoga had been ordered to Vietnam. At the May 2021 hearing he testified that he spent a total of 90 days in the Gulf of Tonkin and South China Sea onboard the U.S.S. Ticonderoga. He testified that his ship was present in the territorial waters of Vietnam. In a relevant advisory opinion, VA's General Counsel noted that, although VA could promulgate a regulation requiring specific types of evidence supporting a veteran's bare assertion that his or her ship entered the territorial sea of Vietnam, "VA is required to consider 'all information and lay and medical evidence of record in a case,' so VA can never limit its inquiry to the point of precluding the full and fair consideration of lay evidence on all matters that lay evidence is capable of establishing." VAOPGCADVIS 1-19 (Mar. 29, 2019), at 2 (quoting 38 U.S.C. § 5107 (b)). Moreover, while VA could promulgate regulations delineating when lay evidence could establish presence within the territorial sea of Vietnam and when it could not, "any such rule or policy could not preempt existing laws governing the consideration of evidence in VA benefits cases." Id. at 3. Thus, even if VA compiled a list of ships that were in the territorial waters of Vietnam or promulgated a corroboration requirement, the Board would still have to consider "all information and lay and medical evidence of record." Id. (citing 38 U.S.C. § 5107 (b)). In doing so, the Board would have to consider that if a reasonable doubt arises as to "any... point" within the claim, including as to the question of a veteran's service within the territorial sea of Vietnam, it would have to resolve this reasonable doubt in favor of the claimant. Id. (citing 38 C.F.R. § 3.102 ). Moreover, it is error for the Board not to consider lay evidence regarding service in Vietnam and Agent Orange exposure. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). Consistent with the above principles and in consideration of the deck logs, JSRRC response, lay statements and 1972 letter, and 1972 newspaper clipping, the Board finds the evidence is at least evenly balanced as to whether the Veteran served offshore of the Republic of Vietnam in the summer of 1972 as that term is defined in 38 U.S.C. § 1116A. There is no evidence affirmatively to the contrary. Any reasonable doubt created must be resolved in his favor. The record further shows current ischemic heart disease, documented in a May 2018 VA treatment record, for example. The requirements for at least a 10 percent evaluation are additionally satisfied under the applicable diagnostic code (DC) as a June 2018 VA treatment record shows he has been prescribed medication for his heart. See 38 C.F.R. §§ 3.307 (a)(6)(ii), 4.104, DC 7005 (arteriosclerotic heart disease). As the evidence is at least in equipoise in showing that the Veteran has current ischemic heart disease that is presumed to be the result of exposure to herbicide agents resulting from service in Vietnam, service connection is warranted on a presumptive basis under 38 C.F.R. § 3.309(e). REASONS FOR REMAND 2. Service connection for a respiratory disability, to include COPD, is remanded. The Veteran has current COPD, documented on VA examination in October 2012. As noted, the VA Regional Office has acknowledged his in-service asbestos exposure. See October 2012 rating decision. Further, service treatment records show that the Veteran sought treatment for a cough in March 1972 and June 1972, and had bronchitis in November 1972. On the matter of the etiology of the disability, on VA examination in October 2012, the examiner found that the current COPD was less likely than not related to asbestos exposure in service because the Veteran did not have interstitial lung disease. In doing so, however, the examiner did not address his pertinent STRs. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Moreover, as Dr. B. opined in September 2012 and October 2012 reports that the Veteran's COPD "could" be related to in-service asbestos exposure, a medical opinion reconciling the nexus evidence should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to obtain an opinion addressing the nature and etiology of his current respiratory disability, to include COPD. A rationale must be provided for all conclusions reached. While a medical opinion is required, the examiner is asked to consider the Veteran's lay reports and may state whether they are medically-consistent or medically-inconsistent with other evidence of record. The examiner is asked to opine on whether it is at least as likely as not that any current respiratory disability, including COPD, began during active service or is related to an in-service injury, event, or disease, to include the Veteran's accepted in-service asbestos exposure and/or the service treatment records documenting a cough and bronchitis. In rendering this opinion, please consider: March 1972 and June 1972 service treatment records documenting a cough, and November 1972 service treatment record documenting bronchitis September 2012 and October 2012 opinions of Dr. B. stating that the Veteran's COPD could be related to service, including to asbestos exposure therein October 2012 VA examiner's finding that the current COPD was less likely than not related to asbestos exposure in service because the Veteran did not have interstitial lung disease M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.