Citation Nr: 19136299 Decision Date: 05/13/19 Archive Date: 05/10/19 DOCKET NO. 12-10 116 DATE: May 13, 2019 REMANDED Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from October 1974 to October 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2017 when it was remanded for further development. Subsequently, the Veteran testified before the Board at a hearing in August 2018. A transcript of the hearing is of record. The Board acknowledges that in February 2018 the Veteran submitted VA Form 21-0958, Notice of Disagreement (NOD), with a January 2018 rating decision that denied claims involving entitlement to service connection for bilateral lower and upper extremity neuropathy and entitlement to a total disability rating based on individual unemployability (TDIU). In addition, in October 2018 the Veteran submitted a NOD with an October 2018 rating decision that denied claims involving entitlement to service connection for bilateral lower and upper extremity neuropathy and entitlement to service connection for inner ear problems. The Board’s review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is in the process of taking action on these NODs. As such, the Board will not take any further action on the matters, and they will only be before the Board if the Veteran timely files a substantive appeal after a statement of the case is issued. Lastly, in a February 2019 Board remand, the Board explained that the Veteran’s claim addressed herein was temporarily stayed pending a decision by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The Federal Circuit has issued a decision in that case and the claim is now ready for adjudication. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure, is remanded. In January 2019, the Federal Circuit issued a decision in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), where the Federal Circuit held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to service connection under 38 U.S.C. § 1116. The Veteran contends he was exposed to herbicide agents while serving “extremely close to the shoreline and during the evacuation of Saigon” while serving in the Navy during the Vietnam War. See VA Form 21-4138, dated February 9, 2010. The Veteran further contends that he was exposed to herbicide agents in May 1975 when he was evacuating people to the Philippines. See VA Form 21-4138, dated September 7, 2010; VA Form 9, Substantive Appeal, dated April 17, 2012. A review of the record illustrates the Veteran received an Armed Forces Expeditionary Medal for the Mayaguez Vietnam Evacuation. However, it is unclear from the record whether the Veteran was ever within the 12 nautical mile territorial sea of Vietnam during his service for which he was awarded the Armed Forces Expeditionary Medal for the Mayaguez Vietnam Evacuation or during any period of service for which he participated in the evacuation of Saigon. Therefore, further development is necessary to determine whether the Veteran was within 12 nautical miles of Vietnam in April 1975 or May 1975. See Procopio, 913 F.3d at 1380-81. The matter is REMANDED for the following action: Pursuant to the decision in Procopio v. Wilkie and OGC Advisory Opinion 1-19, complete all necessary development to determine whether the Veteran was within the 12 nautical mile territorial sea of Vietnam in April 1975 or May 1975, the period of service for which the Veteran contends he participated in the evacuation of Saigon and was awarded an Armed Forces Expeditionary Medal for the Mayaguez Vietnam Evacuation. Take any other development action necessary to determine whether the Veteran was exposed to herbicide agents during his service. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, 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.