Citation Nr: 21040250 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 12-28 375 DATE: July 2, 2021 ORDER Entitlement to service connection for ischemic heart disease, as due to exposure to herbicide agents is granted. Entitlement to service connection for Parkinson's disease, as due to exposure to herbicide agents is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran had in-country service in Vietnam, and was on the U.S.S. William Pratt while it was in the official waters of Vietnam from August 7, 1967 to September 21, 1967. 2. The Veteran's ischemic heart disease and Parkinson's disease are related to his active duty service because of his presumptive exposure to herbicide agent and due to his in-country service and documented offshore service in the Republic of Vietnam during the Vietnam War. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, as due to exposure to herbicide agents have been satisfied. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313. 2. The criteria for service connection for Parkinson's disease, as due to exposure to herbicide agents have been satisfied. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1964 to October 1967, to include service in the Republic of Vietnam. The Veteran died in June 2013, and the Board dismissed this appeal in September 2013 due to his death. In September 2013, the Appellant, who is the Veteran's surviving spouse, requested substitution. In June 2021, a Department of Veterans Affairs (VA) Regional Office (RO) finally recognized her as a substitute, which allowed her case to be returned to the Board of Veterans' Appeals (Board). These matters come before the Board on appeal from a January 2011 rating decision issued by a VA RO. The Board notes that in an April 2014 rating decision, the RO awarded service connection for the cause of the Veteran's death due to exposure to herbicide agents. Service Connection for Ischemic Heart Disease and Parkinson's Disease Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For exposure to herbicide agents, VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The list of diseases associated with exposure to certain herbicide agents includes ischemic heart disease and Parkinson's disease. 38 C.F.R. § 3.309(e). The Veteran had asserted that he was exposed to herbicide agents during his service in the Republic of Vietnam. See September 2010 Statement in Support of Claim. Specifically, the Veteran reported arriving off of Da Nang, Vietnam and served as the boat officer navigating a boat to the harbor to drop officers for a meeting. Id. The Veteran had a diagnosis of ischemic heart disease and Parkinson's disease. See November 2010 VA Examination Report. Thus, the issue is whether the Veteran's disabilities were caused by his active duty service, to include as due to exposure to herbicide agents. For purposes of applying the herbicide presumption, "service in Vietnam" includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). In an important case, the United States Court of Appeals for the Federal Circuit held that "Service in the Republic of Vietnam" also includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116(f) that they "served in the Republic of Vietnam," regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam. Under the Act, Congress codified Procopio and established that a veteran who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to herbicide agent unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service for the diseases listed in 38 U.S.C. § 1116. The Act detailed that a location can be considered as "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. As such, to be entitled to presumptive service connection the Veteran must have service in the Republic of Vietnam or offshore of Vietnam. The questions for the Board are whether the Veteran had service on the ground in Vietnam, or whether the U.S.S. William Pratt sailed within 12 nautical miles of the waters of Vietnam at any point while the Veteran was stationed aboard. The service personnel records indicate that the Veteran reported to the U.S.S. William Pratt on April 23, 1966. He underwent fitness reports while onboard the ship between March 1966 to September 1967. VA conducted development on the Veteran's claim and found that the Veteran served aboard the U.S.S. William Pratt while it was in the official waters of the Republic of Vietnam from August 7, 1967 to September 21, 1967. Deck logs indicate that the ship anchored near the harbor at Da Nang, South Vietnam on August 8, 1967. See also September 2010 Correspondence from National Archives and Records Administration. VA also found that the ship made a brief stop at Da Nang, Republic of Vietnam on August 12, 1967. The Veteran submitted a statement dated October 2010 from Rear Admiral G.S. who served as the commanding officer of the U.S.S. William Pratt from August 1966 to June 1968. Rear Admiral G.S. noted that the vessel anchored at the harbor of Da Nang, Vietnam on August 8, 1967 to permit officers to attend a conference ashore. Rear Admiral G.S. noted that he appointed the Veteran as the boat officer. He reported that the Veteran safely navigated a boat ashore, stayed ashore with the boat and his crew, and returned the passengers back to the ship. The Veteran also submitted a statement dated September 2011 from Captain J.B. who reported serving with the Veteran in the Weapons Department during their deployment on the U.S.S. William Pratt to the Gulf of Tonkin. Captain J.B. noted that the Veteran served on U.S.S. William Pratt while the ship was engaged in combat operations in Haiphong, North Vietnam. Captain J.B. noted that he and the Veteran participated in the visit to the shore of Da Nang, South Vietnam on August 8, 1967. The Boards gives great probative weight to these statements as they were made by people who had direct knowledge of the ship's location and the Veteran's activities during the relevant time period. Notably, the Veteran's service personnel records indicate that his commanding officer during his time onboard the U.S.S. William Pratt was Rear Admiral G.S., and the Veteran also served in the Weapons Department which is consistent with the statement by Captain J.B. The statements are supported by the evidence of record, such as the ship being in Da Nang, Vietnam on August 8, 1967 and the Veteran being onboard the ship while in the official waters of the Republic of Vietnam. The Board finds no reason to doubt the statements given in support of the Veteran's claim. (Continued on the next page) Based on the foregoing, the preponderance of the evidence supports the finding that the Veteran served onshore and offshore of the Republic of Vietnam and is presumed to have been exposed to herbicide agent. Accordingly, the Board finds that the Veteran met the criteria for service connection for ischemic heart disease and Parkinson's disease as they are presumptive disorders. See 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. The Appellant's appeal is granted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.