Citation Nr: 20004403 Decision Date: 01/21/20 Archive Date: 01/17/20 DOCKET NO. 16-37 803 DATE: January 21, 2020 ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to Agent Orange exposure, is dismissed. REMAND Entitlement to service connection for diabetes, to include as due to Agent Orange exposure, is remanded. Entitlement to service connection for Parkinson's disease, to include as due to Agent Orange exposure, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to Agent Orange exposure, is remanded. FINDING OF FACT At his hearing, prior to the promulgation of a decision on the appeal, the Veteran’s representative withdrew the appeal of the issue of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. CONCLUSION OF LAW The criteria for withdrawal of the appeal for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities have been met. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. A Board hearing was conducted at the RO in Seattle, Washington. A transcript of this hearing is contained within the electronic claims file. See July 9, 2019, Hearing Transcript (Tr.). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205(a). If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Withdrawals are effective when received by the Board if a decision has not been promulgated. 38 C.F.R. § 20.205(b)(1)–(3). At the hearing, the undersigned Veterans Law Judge (VLJ) stated that the “issues of upper extremity, peripheral neuropathy, I’ve withdrawn because he does not have those.” The Veteran’s representative replied: “That’s correct.” Tr. at 2. As there remains no allegations of errors of fact or law for appellate consideration for this issue, the Board does not have jurisdiction to review it, and the claim of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is dismissed. See 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS FOR REMAND In January 2019, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a precedential opinion in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), where it 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. Legislation subsequently was enacted that created 38 U.S.C. § 1116A, providing, in part, for a presumption of herbicide agent exposure for veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116A(a)–(b). Notwithstanding any other provision of law, for purposes of this section, the Secretary shall treat a location as being 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 and Cambodia and intersecting the following points: Points Geographic Names Latitude North Longitude East At Hon Nhan Island, Tho Chu Archipelago Kien Giang Province 9°15.0′ 103°27.0′ At Hon Da Island southeast of Hon Khoai Island Minh Hai Province 8°22.8′ 104°52.4′ At Tai Lon Islet, Con Dao Islet in Con Dao-Vung Toa Special Sector 8°37.8′ 106°37.5′ At Bong Lai Islet, Con Dao Islet 8°38.9′ 106°40.3′ At Bay Canh Islet, Con Dao Islet 8°39.7′ 106°42.1′ At Hon Hai Islet (Phu Qui group of islands) Thuan Hai Province 9°58.0′ 109°5.0′ At Hon Doi Islet, Thuan Hai Province 12°39.0′ 109°28.0′ At Dai Lanh point, Phu Khanh Province 12°53.8′ 109°27.2′ At Ong Can Islet, Phu Khanh Province 13°54.0′ 109°21.0′ At Ly Son Islet, Nghia Binh Province 15°23.1′ 109° 9.0′ At Con Co Island, Binh Tri Thien Province 17°10.0′ 107°20.6′ Id. at (d). The law is effective January 1, 2020. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 2(g), 133 Stat. 966, 969 (June 25, 2019). Due to the change in law, VA is required to undertake additional development to determine whether the Veteran was within the offshore water of Vietnam, entitling him to a presumption of herbicide exposure. See 38 U.S.C. § 1116A; 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Obtain any outstanding Military Personnel Records. Should they exist, associate them with the claims file. 2. Contact the Joint Services Records Research Center, or other appropriate entity, to obtain ship logs and any other relevant information to aid in the determination of whether the USS Epperson, Forester, or McCord entered the offshore waters of Vietnam, as described in 38 U.S.C. § 1116A. All attempts to obtain these records, and any records obtained, must be associated with the claims file. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. If any of the claims remain denied, then issue to the Veteran a Supplemental Statement of the Case. After allowing an appropriate amount of time for response from the Veteran, return the claim(s) to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the Court must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.