Citation Nr: 21041634 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-34 523 DATE: July 9, 2021 REMANDED The issue of service connection for the Veteran's cause of death is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from March 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) from an August 2016 rating decision. The Veteran died in January 2016. The Appellant, as the Veteran's surviving spouse, seeks service connection for the cause of the Veteran's death. The Appellant testified before the Board at a hearing in October 2020. A transcript of the hearing has been associated with the claims file. Herbicide Agent Exposure VA regulations state that a Veteran who served in 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 during such service to an herbicide agent, which means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam, specifically: 2,4-Dichlorophenoxyacetic acid; 2,4,5-Trichlorophenoxy-acetic acid; cacodylic acid; and picloram. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Service connection is warranted for a Veteran who has been exposed to an herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, diabetes mellitus, Hodgkin's disease, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, ischemic heart disease, diabetic neuropathy, Parkinson's disease, B-cell leukemias, and respiratory cancers (cancer of the lung, bronchus, larynx, and trachea). Service connection is warranted even if these disorders were not shown during active duty. 38 C.F.R. § 3.309(e). The Board finds that further development is necessary regarding the Appellant's claim of service connection for the Veteran's cause of death. At the October 2020 hearing before the Board, the Appellant provided testimony regarding the claim of service connection for the cause of the Veteran's death, which the Appellant asserts is related herbicide agent exposure during service in the Republic of Vietnam. The Appellant stated that the Veteran's cause of death was lung cancer and that he also had prostate cancer, urinary tract cancer, and hypertension. The Board notes that the Veteran's death certificate indicates that he died in January 2016 and that one of the contributing causes of death is identified as lung cancer. During the Board hearing, the Appellant stated that the Veteran's military occupational specialty (MOS) was as a photographer and that he photographed bomb sites and crash sites, which may have caused him to enter the Republic of Vietnam. The Appellant's representative also stated that the ship upon which the Veteran served, the USS Coral Sea, may have entered the territorial waters of the Republic of Vietnam. Additionally, in a statement submitted in February 2017, the Appellant asserted that while investigating a crash site in the Republic of Vietnam, the Veteran was required to exit a helicopter and walk around to photograph the site. In March 2017, the Agency of Original Jurisdiction (AOJ) made a formal finding that exposure to herbicide agents was not established by the evidence of record; however, this development did not include whether the Veteran entered the territorial waters of the Republic of Vietnam. Moreover, the evidence does not indicate development regarding whether the location of the bomb sites and crash sites photographed by Veteran were in the Republic of Vietnam or within the territorial waters of the Republic of Vietnam. The Board notes that the Veteran's service department records indicate that the Veteran was stationed aboard the USS Coral Sea from approximately July 1969 to December 1970, and that the Veteran's duties included photographing public affairs, damaged equipment, and accidents. Further, as noted above, one of the contributing causes of the Veteran's death has been identified as lung cancer. Thus, if exposure to herbicide agents is established, the Appellant will be entitled to service connection for Veteran's cause of death due to lung cancer. Therefore, the Board finds that upon remand the AOJ should conduct any necessary development to verify the Veteran's alleged exposure to herbicide agents, to include whether the USS Coral Sea operated in the territorial waters of the Republic of Vietnam while the Veteran was aboard the ship or whether the Veteran's duties as a photographer caused him to enter the Republic of Vietnam or the territorials waters of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The matters are REMANDED for the following action: 1. The AOJ should take all appropriate steps to verify the claimed herbicide agent exposure of the Veteran, including whether the USS Coral Sea operated in the territorial waters of the Republic of Vietnam while the Veteran was aboard the ship. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). All attempts and responses should be documented in the claims file. 2. The AOJ should attempt to determine whether the Veteran's duties as a photographer, including photographing public affairs, bomb sites, and crash sites, required him to enter the Republic of Vietnam or the territorial waters of the Republic of Vietnam, noting the hearing transcript where the appellant's representative related there were several crashes of aircraft from the Veteran's ship during the Veteran's service aboard it. All attempts and responses should be documented in the claims file. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, Associate 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.