Citation Nr: 21039823 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-01 555 DATE: July 1, 2021 REMANDED Entitlement to service connection for kidney cancer, to include as secondary to herbicide agent exposure, is remanded. Entitlement to service connection for lung cancer, to include as secondary to kidney cancer, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from January 1969 to December 1972. The Veteran passed away in June 2016, and the Veteran's surviving spouse was substituted as the Appellant in order to complete the appeal for accrued benefits purposes. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2015 rating decision that denied service connection for lung cancer. The Veteran's notice of disagreement (NOD) was received in July 2016. The RO issued the statement of the case (SOC) in December 2016. The Veteran appealed to the Board in December 2016. On her December 2016 VA Form 9, the Veteran requested a Board videoconference hearing. However, in June 2021 the Appellant requested to withdraw her hearing request. A June 2021 VA Form 27-0820 Report of General Information indicates that the Appellant was informed that her request to cancel the scheduled Board hearing had been completed. Therefore, the Board finds that the Veteran's hearing request has been withdrawn. While the Veteran originally sought service connection for lung cancer, evidence developed during the processing of the claim indicates that his lung cancer was caused by the metastasization of his kidney cancer and that he did not have primary lung cancer. See e.g. November 2015 VA examination. Thus, the Board finds that the Veteran's claim raised the issue of whether service connection is warranted for kidney cancer. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). 1. Entitlement to service connection for kidney cancer, to include as secondary to herbicide agent exposure is remanded. 2. Entitlement to service connection for lung cancer, to include as secondary to kidney cancer is remanded. The Appellant seeks service connection for the Veteran's lung cancer, and by extension, the kidney cancer that caused his lung cancer, based on exposure to an herbicide agent. Specifically, the Appellant contends that during the Veteran's service aboard the U.S.S. Coral Sea from 1969 to 1972, he was at various times within twelve nautical miles of the Republic of Vietnam and is, therefore, eligible for a presumption of exposure provided for by the Blue Water Navy Act. Prior to his death, the Veteran also reported that on three separate occasions he was flown to Da Nang for temporary duty assignments and each time he stayed overnight in the maintenance barracks there. See October 2015 lay statement. The Appellant submitted one page of the U.S.S. Coral Sea logbook. Effective January 1, 2020, the Blue Water Navy Vietnam Veterans Act of 2019 (codified at 38 U.S.C. § 1116A) extended the current presumption of herbicide exposure to veterans who served in the offshore waters of the Republic of Vietnam between January 9, 1962 and May 7, 1975. Veterans who served as far as 12 nautical miles from the shore of Vietnam are presumed to have been exposed to herbicides. The record shows that the Veteran served aboard the U.S.S. Coral Sea during the requisite time period. A review of the single page of deck logs of the Coral Sea submitted by the Appellant, show that, on January 28, 1969 the ship docked at Danang Harbor, Vietnam, to transfer helicopters and replenish fuel and ammunition. Jan. 1969 Deck Log, U.S.S. Coral Sea. However, the Veteran entered active duty on January 7, 1969 and his personnel records indicate that he was in basic training during this time period and thus not yet onboard the U.S.S. Coral Sea. Notably, in an October 2015 lay statement, the Veteran reported that he was deployed off the shore of Vietnam in "blue waters" from September 23, 1969 to July 1, 1970 and again from November 12, 1971 to July 17, 1972. The Veteran's service personnel records reveal service aboard the U.S.S. Coral Sea from March 1969 to December 1972. Thus, there is a possibility that he was exposed to herbicides while in the territorial sea of the Republic of Vietnam. As the evidence of record does not rule out the possibility that he was exposed to herbicides while in Vietnam waters, a remand is necessary for further development. The Board acknowledges that there are two positive nexus opinions of record, one of which is supported by detailed rationale. However, both opinions rely on the premise that the Veteran was exposed to herbicides during service, which has not yet been shown. As such, further development is necessary. The matters are REMANDED for the following action: 1. Refer the Veteran's claims for service connection for kidney cancer and lung cancer to the appropriate agency for verification of exposure to herbicides in light of the Blue Water Navy Vietnam Veterans Act of 2019, which defines service "offshore of the Republic of Vietnam" as encompassing service in the territorial sea extending 12 nautical miles from the shores both of that nation and of Cambodia. Specifically, it should be determined whether the U.S.S. Coral Sea came within 12 nautical miles of the Republic of Vietnam during the Veteran's periods of service onboard the vessel. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.