Citation Nr: 20005685 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 16-61 947 DATE: January 23, 2020 REMANDED Entitlement to service connection for diabetes mellitus, type II, including as due to herbicide exposure, is remanded. Entitlement to service connection for peripheral neuropathy, right upper extremity, secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for peripheral neuropathy, left upper extremity, secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for peripheral neuropathy, right lower extremity, secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for peripheral neuropathy, left lower extremity, secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for a right foot ulcer, secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for right leg problems, secondary to diabetes mellitus, type II, is remanded. Entitlement to service connection for an amputated fourth toe, left foot, secondary to diabetes mellitus, type II, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from December 1970 to December 1972 and from October 1975 to September 1980. On appeal is an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. When this matter initially came before the Board, the Board stayed the Veteran’s claim for diabetes mellitus, type II, including as secondary to herbicide exposure, as well as the disabilities the Veteran claims are secondary to diabetes mellitus, type II: peripheral neuropathy, right upper extremity; peripheral neuropathy, left upper extremity; peripheral neuropathy, right lower extremity; peripheral neuropathy, left lower extremity; right foot ulcer; right leg problems; and, amputated fourth toe on left foot. On July 1, 2019, the Secretary of Veterans Affairs directed the Board of Veterans’ Appeals (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. The Act creates new statutory requirements for the adjudications of certain claims based on a veteran’s herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975; in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971; and, in Thailand during the period from January 9, 1962, to May 7, 1975. The stay has been lifted, and the matter has been returned to the Board for adjudication. 1. Entitlement to service connection for diabetes mellitus, type II, including as due to herbicide exposure, is remanded. 2. Entitlement to service connection for peripheral neuropathy, right upper extremity, secondary to diabetes mellitus, type II, is remanded. 3. Entitlement to service connection for peripheral neuropathy, left upper extremity, secondary to diabetes mellitus, type II, is remanded. 4. Entitlement to service connection for peripheral neuropathy, right lower extremity, secondary to diabetes mellitus, type II, is remanded. 5. Entitlement to service connection for peripheral neuropathy, left lower extremity, secondary to diabetes mellitus, type II, is remanded. 6. Entitlement to service connection for a right foot ulcer, secondary to diabetes mellitus, type II, is remanded. 7. Entitlement to service connection for right leg problems, secondary to diabetes mellitus, type II, is remanded. 8. Entitlement to service connection for an amputated fourth toe, left foot, secondary to diabetes mellitus, type II, is remanded. The law provides that a Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange), and that exposure in turn will be presumed to be the cause of certain enumerated diseases, including diabetes mellitus Type II. See 38 C.F.R. § 3.309(e). VA had historically interpreted the statutory phrase “served in the Republic of Vietnam” as a requirement that the Veteran served on land or inland waterways. However, the definition of service in the Republic of Vietnam was recently expanded to include naval ships that served in waterways within 12 nautical miles of the territorial sea of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). Thus, the remaining issues in this case turn on whether the Veteran was stationed on board a ship that traveled within 12 nautical miles of the coast of Vietnam during the period from January 9, 1962, to May 7, 1975. The Board finds that the evidence of record is insufficient to determine whether the Veteran served within the 12-nautical-mile territorial sea of Vietnam. Here, the Veteran contends that he served on board the USS Saratoga and flew helicopter missions into Vietnam. However, the record currently does not provide clarity as to whether the Veteran’s time on board the USS Saratoga, or any other naval vessel, coincided with the timeframe set out in the Act of the period from January 9, 1962, to May 7, 1975. On remand, additional development is necessary to make this factual determination. If it is determined that the Veteran served within the 12-nautical-mile territorial sea of Vietnam, VA examinations are needed for the disorders the Veteran claims are secondary to his diabetes mellitus, type II: namely, peripheral neuropathy, right upper extremity; peripheral neuropathy, left upper extremity; peripheral neuropathy, right lower extremity; peripheral neuropathy, left lower extremity; right foot ulcer; right leg problems; and amputated fourth toe on left foot. On remand, if it is determined that the Veteran served within the 12-nautical-mile territorial sea of Vietnam or was otherwise exposed to herbicide agents during service, VA examinations must be obtained for each of the claimed conditions that addresses both direct service connection and service connection that is secondary to, or aggravated by, the Veteran’s diabetes mellitus. The matters are REMANDED for the following action: 1. Conduct all factual development necessary to determine whether the USS Saratoga served within the 12 nautical mile territorial sea of Vietnam at any point while the Veteran was stationed on board during the period from January 9, 1962, to May 7, 1975, or whether the Veteran was otherwise exposed to herbicide agents while on active duty. All efforts to verify any such service must be documented of record. If no records are found and additional requests would be futile, notify the Veteran and his representative. 2. If it is determined that the Veteran was stationed in the 12-nautical-mile territorial sea of Vietnam during the period from January 9, 1962, to May 7, 1975, then obtain a VA examination regarding the Veteran’s claimed peripheral neuropathy, right upper extremity; peripheral neuropathy, left upper extremity; peripheral neuropathy, right lower extremity; peripheral neuropathy, left lower extremity; right foot ulcer; right leg problems; and amputated fourth toe on left foot. For each disability identified above, the examiner must review the claims file, examine the Veteran, and provide responses to each of the following questions: • Whether it is at least as likely as not that the disability began in service, within one year of service separation, or is otherwise etiologically related to the Veteran’s time in service. • Whether it is at least as likely as not that the disability was caused by diabetes mellitus, type II. • Whether it is at least as likely as not that the disability was aggravated by diabetes mellitus, type II. A complete rationale must be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, he or she must explain why this is so and whether there is additional evidence that would permit the opinion to be provided. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts, 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.