Citation Nr: 20002846 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 17-07 625 DATE: January 14, 2020 REMANDED Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1964 to January 1968 and from October 1970 to August 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript is of record. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure is remanded. The Veteran seeks service connection for diabetes mellitus, type II. He asserts that he was exposed to herbicide agents while serving aboard the U.S.S. Southerland from January 1965 to May 1966. The Veteran has also reported that in August 1972 he spent one or two nights at the air base in DaNang while flying from the U.S.S. Midway to Clark Air Force Base in the Philippines. Additional information is needed before the Board can make a fully informed decision. Diabetes mellitus, type II, is recognized by VA as a disease for which presumptive service connection is available as due to herbicide exposure. 38 C.F.R. § 3.309 (e). A veteran who, during active service, served in the Republic of Vietnam during the period beginning January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. VA had historically interpreted the statutory phrase “served in the Republic of Vietnam” as incorporating a requirement that the Veteran served on land or inland waterways. Recently, however, in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ ” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. There is insufficient evidence of record to determine whether, at any point during his service aboard the U.S.S. Southerland, the Veteran is considered to have had qualifying service in the country of Vietnam, pursuant to 3.307(a)(6)(iv); Procopio, 913 F.3d at 1380-81. Accordingly, on remand, the RO should conduct appropriate development (such as obtaining deck logs, ship logs, or any other documents detailing the movements and operations of the U.S.S. Southerland during the Veteran’s service period) to determine whether the Veteran is considered to have served in the Republic of Vietnam, such that herbicide agent exposure can be presumed. Additionally, RO should conduct appropriate development to determine whether the Veteran stopped in DaNang while flying from the U.S.S. Midway to Clark AFB in the Philippines in August 1972. The matters are REMANDED for the following action: 1. Take appropriate steps to attempt determine whether, at any point during the Veteran’s service aboard the U.S.S. Southerland from January 1965 to May 1966, the vessel was in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ based on deck logs, ship logs, or any other documents detailing the movements and operations of the vessel. 2. The RO should also attempt to verify whether the Veteran stopped at DaNang AFB while flying from the U.S.S. Midway to Clark AFB in the Philippines in August 1972.If more details are needed, contact the Veteran to request the information. 3. After the aforementioned development has been completed, issue a formal finding outlining the steps taken to verify herbicide agent exposure based on qualifying service in the Republic of Vietnam and also notify the Veteran prior to readjudication of the appeal. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.