Citation Nr: 21031784 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-15 032 DATE: May 24, 2021 REMANDED The issue of entitlement to service connection for cardiovascular disease, to include mitral regurgitation and aneurysm, is remanded. The issue of entitlement to service connection for prostate cancer is remanded. REFERRED The matter of a petition to reopen a claim of entitlement to service connection for diabetes mellitus, type II, previously denied by the RO in a July 2016 rating decision, has been raised by communications from the Veteran including in December 2019. The matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ) and is not on appeal before the Board. As such, it would violate due process for the Board to take jurisdiction without an initial determination by the AOJ. Therefore, the Board does not have jurisdiction over the claim and it is referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such form. See 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (continuing to provide for Board referral of unadjudicated claims). REASONS FOR REMAND The Veteran served on active duty from April 1968 to March 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned in May 2021. 1. The issue of entitlement to service connection for cardiovascular disease, to include mitral regurgitation and aneurysm, is remanded. 2. The issue of entitlement to service connection for prostate cancer is remanded. Both of the issues on appeal are being remanded for additional development pursuant to a new law enacted during the pendency of this appeal. New caselaw and new legislation expanded the definition of service in the Republic of Vietnam. First, in January 2019, the U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation. In short, the Federal Court has concluded that a presumption of herbicide exposure may be granted to any Veteran who served within the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (2019). Second, Congress passed the Blue Water Navy Vietnam Veterans Act of 2019, which extends the provisions relevant to presumptive service connection based on exposure to herbicide agents to Navy veterans who served offshore of Vietnam 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 at points specified in the Act. Thus, Navy veterans who served aboard ships operating offshore of Vietnam during the Vietnam era in the specified areas are presumed to have been exposed to herbicide agents. In this case, the Veteran has reported service aboard the vessels USS America (1969-1970) and the USS Constellation (1971), coming within or close to 12 nautical miles of Vietnam during the Vietnam War. The AOJ determined, as discussed in the February 2018 statement of the case, that "evidence you presented reported you served in the 'Blue Waters' of the shore of Vietnam." Remand is warranted so that attempts can be made to determine whether the Veteran entered Vietnam's territorial sea or a location 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 at points specified in the Act while the Veteran was aboard vessels pursuant to the Blue Water Act and Procopio, supra. The Veteran also contends that he may have been exposed to tactical herbicide agents through other means, including (1) during his duties as an aviation electrician working on aircraft that flew in and out of Vietnam, (2) during service in Subic Bay, and/or (3) during service in Okinawa. A remand is warranted for development of the evidence regarding the Veteran's contentions of in-service exposure(s) to tactical herbicide agents. Additionally, the Board finds that a VA examination is warranted to develop the evidence informing the issue of entitlement to service connection for cardiovascular disease, to be completed following the development concerning potential in-service exposure to tactical herbicide agents. The matters are REMANDED for the following action: 1. Please obtain and associate with the Veteran's claims-file copies of all outstanding VA treatment records. 2. Please perform any necessary development to determine whether the Veteran (including when aboard the USS America (in 1969-1970) and the USS Constellation (in 1971)) entered the twelve nautical mile territorial sea of the Republic of Vietnam or any similar area identified in the Blue Water Navy Vietnam Veterans Act of 2019 (12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting at points specified in the Act). 3. After the above action has been completed, the AOJ is asked to document in the record whether the available information and evidence demonstrate that the Veteran served in the territorial sea of the Republic of Vietnam or any similar area identified in the Blue Water Navy Vietnam Veterans Act of 2019, including while stationed aboard the USS America (reportedly in approximately 1969-70) and USS Constellation (reportedly in approximately May to October 1971). If the evidence is at least in equipoise, the Veteran is presumed to have been exposed to herbicide agents. 4. If the Veteran's contended exposure to tactical herbicide agents has not been confirmed by the above-directed development, please attempt to verify the Veteran's other theories of asserted in-service exposure to tactical herbicide agents (1) during his duties as an aviation electrician working on aircraft that flew in and out of Vietnam, (2) during service in Subic Bay, and/or (3) during service in Okinawa. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. The AOJ must request for the Compensation Service to perform a review of the inventory of herbicide operations maintained by the DoD to determine whether herbicides were used or tested in Okinawa, Japan; or Subic Bay, Philippines, during the time the Veteran was stationed in these locations. If the Veteran's exposure is not verified by the request to the Compensation Service, verification should be sought from JSRRC. In this regard, forward a list of the Veteran's service dates and duty locations, and the Veteran's contentions regarding the nature of his exposure to herbicides in Japan and the Philippines to JSRRC, and request verification of his exposure to herbicides. The results of these development efforts should be outlined in a memorandum or otherwise documented for the record. 5. After the development above has been completed, please schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed cardiovascular disease. The examiner must review the claims file and a copy of this Remand. The examiner is asked to: a) Identify all cardiovascular disease diagnoses found for this Veteran, with particular attention to identifying any ischemic heart disease, that are currently present or have been present during the pendency of this claim (since December 2013). b) For each diagnosis found, please opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's cardiovascular disease diagnosis had onset in, or is otherwise related to, active service (including with attention to the Veteran's contended exposure to jet fuel during service). c) If, and only if, it is determined pursuant to development conducted in accordance with this remand that the Veteran may be presumed to have been exposed to tactical herbicide agents / Agent Orange during active duty, the clinician should provide an opinion as to whether any of the Veteran's cardiovascular disease diagnoses (other than ischemic heart disease) is at least as likely as not etiologically related to such exposure. The examiner is advised that a negative opinion with respect to exposure to tactical herbicide agents / Agent Orange cannot be based solely on the fact that a particular diagnosis may not appear on the list of diseases that are presumptively associated with exposure to herbicide agents. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran's lay statements. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.