Citation Nr: 20006575 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 18-42 923 DATE: January 29, 2020 REMANDED Whether new and material evidence has been received to reopen the claim of service connection for diabetes mellitus type II, and if so, whether service connection for diabetes mellitus type II is warranted, is remanded. Service connection for bilateral lower extremity peripheral neuropathy associated with diabetes mellitus type II is remanded. Service connection for glaucoma associated with diabetes mellitus type II is remanded. Service connection for erectile dysfunction associated with diabetes mellitus type II is remanded. REASONS FOR REMAND The Veteran had active service from June 1973 to June 1976. 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 created new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in, among other places, the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. The issues listed on the cover page of this decision were potentially affected by the Act and were stayed in the Board’s September 2019 decision. The stay having been lifted, these issues are now properly before the Board. The Veteran contends that his diabetes may be related to exposure to herbicide agents, namely, Agent Orange, and this his lower extremity peripheral neuropathy, glaucoma, and erectile dysfunction, are secondary to his diabetes. He has stated that he was on board a Navy ship during the withdrawal from Vietnam, see May 2013 VA treatment note. In correspondence, he has indicated that he had service in Vietnam in 1974, see July 2004 VA 21-526, Veterans Application for Compensation or Pension; and that he had service in Vietnam from January 1973 to January 1975, to include off the coast of Vietnam in 1973 while serving on the USS Midway, see August 2007 VA 21-526, Veterans Application for Compensation or Pension. In the March 2009 rating decision that denied service connection for diabetes, the Agency of Original Jurisdiction (AOJ) noted that the required service in Vietnam was not shown, nor was there evidence of exposure to herbicides. The U.S. Court of Appeals for the Federal Circuit has since issued an en banc decision expanding the eligibility for presumptive service connection to all veterans who served on ships in the territorial seas, within 12 nautical miles, of the Republic of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). In light of Procopio and the Veteran’s assertions that he served in Vietnam to include off the coast of Vietnam on a Navy ship, the Board finds that the AOJ should undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam. Such action may include obtaining and reviewing the deck logs of the USS Midway and the USS Enterprise, the two vessels on which service records show the Veteran served, to ascertain its whereabouts during the relevant time periods, conducting any relevant inquiries with the Joint Services Records Research Center (JSRRC) and any other appropriate record repositories, and any other development deemed appropriate. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated from August 2018. 2. Undertake all necessary actions to determine whether the Veteran served in the Republic of Vietnam in light of the Federal Circuit’s recent holding in Procopio (cited above). Such action may include obtaining and reviewing the deck logs, cruise history, and command history of both the USS Midway and the USS Enterprise in order to ascertain their whereabouts while the Veteran served on those vessels, conducting an appropriate inquiry with the JSRRC, National Personnel Records Center (NPRC), or other appropriate records custodians, and any other development deemed necessary. Any development should specifically address whether either the USS Midway and/or the USS Enterprise was within the 12-nautical mile radius as defined in 38 U.S.C. § 1116A(d). (Continued on Next Page) 3. After completing the above actions and any other development as deemed necessary by the receipt of any new evidence, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Polly Johnson, 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.