Citation Nr: 20004680 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 12-33 156 DATE: January 21, 2020 REMANDED Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for ischemic heart disease, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure or as secondary to diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus, is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1965 to July 1968. In September 2019, the Board of Veterans’ Appeals (Board) issued a decision which, in part, stayed the adjudication of the issues listed above, noting this stay was pursuant to a July 2019 memorandum in which the Secretary of Veterans Affairs directed the Board to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. That date passed, the stay is lifted, and adjudication of stayed issues resumes in accordance with the Board’s docket order. The Veteran’s claim to reopen his service connection claim for diabetes mellitus and claims for service connection for ischemic heart disease and hypertension involve his contention that he was exposed to herbicide agents while serving aboard the U.S.S. Valley Forge. The U.S.S. Valley Forge is listed on the Category V list, which means that the ship was operating in the Republic of Vietnam’s close coastal waters for extended periods of time with evidence that smaller crafts from the ship regularly delivered supplies or troops ashore. However, the record contains conflicting evidence as to whether the Veteran ever went ashore to Vietnam. In a March 2012 statement, the Veteran indicated he never went ashore and never touched the ground. See Correspondence. But then, in July 2014, he submitted a photograph that he described as a picture of himself “on [a] longboat to Da Nang.” See Photograph. There are no identifying features of the long boat in the photograph, to include its destination point, and the Veteran has not submitted any other supportive evidence to show that he went ashore to the Republic of Vietnam. Notwithstanding the lack of verifiable evidence that the Veteran personally disembarked from the ship to go ashore, in Procopio, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that Veterans who served in the 12-nautical mile territorial sea of the Republic of Vietnam are entitled to presumptive service connection for herbicide agent exposure under 38 C.F.R. § 3.307. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The development undertaken in this case thus far has focused on the questions of whether the Veteran’s ship ever entered the inland waterways of Vietnam and whether he ever physically had “boots on the ground” in Vietnam. However, considering the recent decision in Procopio, consideration must now also be given to whether the U.S.S. Valley Forge was within the 12-nautical mile territorial sea of the Republican of Vietnam during the Veteran’s service aboard the ship. Accordingly, a remand is warranted so that appropriate development may be conducted to determine whether that ship was within the 12-nautical mile territorial sea of the Republic of Vietnam while the Veteran was onboard. The Board notes that the remaining issues on appeal are inextricably intertwined with the remanded claim to reopen the Veteran’s claim for service connection for diabetes mellitus; thus, they must also be remanded, pending resolution of the inextricably intertwined issue. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam considering the Federal Circuit’s recent holding in Procopio. Such action may include obtaining and reviewing the deck logs of the U.S.S. Valley Forge to ascertain its whereabouts while the Veteran served aboard the ship, conducting a further inquiry with the Joint Services Records Research Center (JSRRC) or other appropriate agency, and any other development deemed appropriate. Any development on remand should address whether the U.S.S. Valley Forge served within the 12-nautical mile territorial sea of the Republic of Vietnam while the Veteran served aboard that ship. If any requested records or documentation are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.