Citation Nr: 20004602
Decision Date: 01/21/20	Archive Date: 01/21/20

DOCKET NO. 16-14 610
DATE: January 21, 2020

REMANDED

Entitlement to service connection for diabetes mellitus is remanded.

Entitlement to service connection for hypertension is remanded.

Entitlement to service connection for right lower extremity peripheral neuropathy is remanded.

Entitlement to service connection for left lower extremity peripheral neuropathy is remanded.

Entitlement to service connection for erectile dysfunction is remanded.

Entitlement to service connection for right upper extremity peripheral neuropathy is remanded.

Entitlement to service connection for left upper extremity peripheral neuropathy is remanded.

REASONS FOR REMAND

The Veteran had active service from July 1963 to November 1966.

Further development with regard to the circumstances of the Veteran’s Vietnam service is necessary.

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 (Federal Circuit) reversed the Court’s holding in Haas v. Peak, 525 F.3d 1168 (Fed. Cir. 2008). In reversing the Court’s holding, the Federal Circuit found that “veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam meet the criterion of 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam.”

As relevant to this case at hand, the record reflects that the Veteran served aboard the USS Bennington (CVS-20) during the Vietnam War. The record does not contain any information regarding whether this ship navigated within the required 12-nautical mile territorial sea of the Republic of Vietnam to, in turn, warrant presuming the Veteran was exposed to Agent Orange. Moreover, his contention that he was sent to Da Nang to service airplanes has not been fully developed. He has provided a date range for this contention, therefore, the receipt of any available deck logs or other service records that might tend to show servicemen leaving the ship for Da Nang for this period should be obtained.

All this development is especially important because Type II Diabetes Mellitus is a disease presumptively associated with exposure to Agent Orange.  Moreover, all the Veteran’s remaining claims are premised on the additional disabilities being complications of (so secondary to) his diabetes, therefore, also the result of his military service.

Accordingly, the claims are REMANDED for the following actions:

1. Contact the appropriate service agency to determine whether the USS Bennington (CVS-20) navigated within the 12-nautical mile territorial sea of the Republic of Vietnam and, if so, the dates it did.

 

2. Contact the appropriate service agency to determine whether there are records, to include deck logs, to demonstrate the likelihood that the Veteran might have left the USS Bennington (CVS-20) and flown to Da Nang to repair damaged aircraft between 1965 and 1966.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Erdheim

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.