Citation Nr: 20005136 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 18-32 249 DATE: January 22, 2020 REMANDED Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1971 to August 1974. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript is of record. Upon review, the Board finds that additional development is needed prior to adjudication of the claim. The Veteran has claimed that he is entitled to service connection for prostate cancer as a result of exposure to herbicide agents on active duty. Specifically, he has asserted that he was exposed to herbicide agents while serving aboard the USS Caliente (oiler for refueling), the USS Cacapon (oiler for refueling), and the USS Niagara Falls (supply ship). He has not claimed that he physically set foot in the Republic of Vietnam. Rather, he has stated his ships served within the territorial sea surrounding the shores of Vietnam and indicated that the ships may have been 30 to 50 miles off the coast of Vietnam. See November 2019 hearing transcript (travelled up and down the coast and docked at different ports). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307 (a)(6)(iii). The Federal Circuit recently held “service in the Republic of Vietnam” includes service on the landmass, inland waterways and in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 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. Thereafter, the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. 116-23 was passed, which was codified under 38 U.S.C. § 1116A. Under that statute, 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 points listed in the statute. In this case, the Veteran’s military personnel records show that he served aboard USS Caliente, USS. Cacapon, and USS Niagara Falls. Records also indicate that he served on the U.S.S. Caliente in July 1973 when the ship was in the waters adjacent to south Vietnam. However, it is unclear from the record whether any of the ships operated within 12 nautical miles from the shores of Vietnam during the time he was on board. Therefore, the case must be remanded to determine whether the ships operated within 12 nautical miles from the shores of Vietnam. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for prostate cancer. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. The AOJ should conduct all appropriate development needed to determine whether the USS Caliente, USS Cacapon, and USS Niagara Falls were located within 12 nautical miles of the shores of the Republic of Vietnam during the time that the Veteran served on each ship. All efforts made to undertake additional development should be documented and any documentation received by the AOJ should be associated with the claims file. 3. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski 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.