Citation Nr: 21017063 Decision Date: 03/24/21 Archive Date: 03/24/21 DOCKET NO. 15-33 641 DATE: March 24, 2021 REMANDED Entitlement to service connection for esophageal cancer due to herbicide agent exposure is remanded. REASONS FOR REMAND The Veteran had active service from October 1968 to September 1972. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in September 2016. At the time of his death, a claim for entitlement to service connection for esophageal cancer due to herbicide agent exposure was pending. Effective October 10, 2008, “If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under § 5121a of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.” 38 U.S.C. § 5121A. The Board notes that unlike an accrued benefits claim, the record is not closed on the date of death of the original claimant, but remains open for submission and development of any pertinent additional evidence. In this case, the Appellant sought substitution within one year of the Veteran’s death in April 2017. Subsequently, in April 2019, the RO granted the Appellant’s request to be substituted as the claimant for the purposes of processing this appeal to completion. The Appellant appeared at a hearing with the undersigned in January 2021. Entitlement to service connection for esophageal cancer due to herbicide agent exposure is remanded. The Appellant claims service connection is warranted for esophageal cancer. The Veteran claimed his cancer was secondary to his in-service herbicide exposure, from the water used on the USS America off the coast of Vietnam in 1972 and from being stationed at the Naval Air Station Whiting Field. The Veteran alleged that while stationed at Whiting Field, he made numerous trips to Choctaw Field on the Eglin Reservation where chemical spray testing was performed. See December 2014 Statement in Support of Claim. VA laws and regulations provide that if a Veteran was exposed to an herbicide agent during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Presumptive service connection as due to herbicide agent exposure may only be presumed for those conditions determined by the Secretary to have a positive association to herbicide agent exposure. The Board notes 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, and that regulation does not include esophageal cancer. See also National Academy of Sciences Veterans and Agent Orange Update 2012 (issued in December 2013 and finding that presumption of service connection based on exposure to herbicides is not warranted for cancers of the digestive organs including esophageal cancer, stomach cancer, colorectal cancer, hepatobiliary cancers and pancreatic cancer). Accordingly, a relationship between the Veteran’s esophageal cancer and herbicide exposure cannot be presumed. Nevertheless, notwithstanding the presumption, a claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042-44 (Fed. Cir. 1994). Thus, service connection could be established on a direct basis. See 38 C.F.R. § 3.303(a). Unlike presumptive service connection, entitlement to direct service connection requires evidence of an in-service incurrence as well as medical evidence linking the disability to service. In the case at hand, the Appellant links the Veteran’s esophageal cancer to herbicide agent exposure. The Board notes an April 24, 2012 Request for Information notes the Veteran was attached to a unit, fighter squadron 74, that could have been assigned to a ship or to shore. The Request notes for DOD purposes, the unit was credited with Vietnam service from 7/02/1972 to 7/04/1972, 7/11/1972 to 7/24/1972, 08/1972 to 8/28/1972, 09/06/1972 to 9/14/1972. The Veteran’s Enlisted Performance Record indicates he served with Fitron 74 and VF-74 in November 1971, through September 1972. Personnel records also place him aboard the USS America in June 1972, when the ship crossed the equator. The Appellant’s representative has included deck logs indicating the USS America was in the Gulf of Tonkin during the Veteran’s period of service, however, some of the logs are unclear, and a determination as to whether the ship operated within the 12 nautical mile territorial sea of the Republic of Vietnam during the dates of the Veteran’s service has not been made. See Procopio v. Wilkie, 913 F.3d 1371, 1375-76 (Fed. Cir. 2019). Therefore, further factual development is necessary in order to verify the Veteran’s claimed exposure through the Joint Services Records Research Center (JSRRC). The JSSRC should consider the deck logs submitted by the Appellant detailing movements and operations of the USS America. The matters are REMANDED for the following action: (Continued on the next page)   1. Contact the appropriate records repository including, but not limited to the JSRRC, the National Personnel Records Center (NPRC), the Records Management Center (RMC), and any other appropriate location and request further development regarding whether the Veteran may be presumed to have been exposed to herbicide agents when serving aboard the USS America. Specifically, attempts should be made to ascertain whether the USS America sailed within the 12 nautical mile territorial sea of the Republic of Vietnam during the period between November 1971 and September 1972. All development should consider the included deck logs of the USS America from the Appellant’s representative during the Veteran’s period of active service. The development should also comply with the ruling in Procopio v. Wilkie, that the “Republic of Vietnam” includes both its landmass and its territorial sea extending 12 miles off the shore. 2. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, to include obtaining a medical opinion addressing the cause of the Veteran’s death and any link to service, the Appellant’s claim should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.