Citation Nr: 20006053 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 17-08 063 DATE: January 24, 2020 REMANDED Entitlement to service connection for chronic lymphocytic leukemia, to include as secondary to herbicide agent exposure, is remanded. REASONS FOR REMAND The Veteran had active service from August 1971 to August 1979. Entitlement to service connection for chronic lymphocytic leukemia, to include as secondary to in-service herbicide agent exposure With regard to his claim for service connection of chronic lymphocytic leukemia, the Veteran contends that this disorder is a result of his exposure to tactical herbicide agents during his active duty. The Board finds that there is insufficient evidence upon which to base a presumption of service connection under 38 C.F.R. §§ 3.307 and 3.309 and that a remand is necessary. Veterans diagnosed with an enumerated disease who, during active 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 to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that veterans who “served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’” are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. In the current appeal, VA treatment records confirm that the Veteran has been diagnosed with chronic lymphocytic leukemia. Also, his personnel records show that he served aboard the USS Haleakala from March 1972 to February 1973 and the USS Gallant from April 1973 to August 1975 and that he received a Vietnam Service Medal. Also of record is a letter from the U.S. Navy listing vessels that served off the coast of Vietnam from 1962 to 1975. These records include no clear evidence as to how many nautical miles from land the ships were located at any given time. As such, a remand is necessary to obtain confirmation of the Veteran’s service within the 12 nautical miles of the territorial sea of the Republic of Vietnam in order to determine whether the presumptive service connection provisions of 38 C.F.R. § 3.307 and 3.309 are applicable here. This matter is REMANDED for the following action: 1. Obtain any outstanding service personnel records pertaining to this Veteran, including, if necessary, an inquiry to the appropriate record keeping entity for location and movements of the USS Haleakala and the USS Gallant during the dates above and any other dates relevant to his service. 2. Obtain any outstanding VA treatment records. Also, contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations to procure such records. 3. Then, and only if the Veteran’s presence within 12 nautical miles of the shoreline of Vietnam cannot be confirmed, schedule him for an appropriate examination to determine the nature and etiology of his leukemia. All necessary special studies or tests are to be accomplished. Based on a review of the record and the examination, the examiner must opine as to whether it is at least as likely as not (50% probability or better) that the claimed condition was caused by an in-service injury, event, or disease. A complete rationale for any opinion expressed must be provided. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lee 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.