Citation Nr: 20006845 Decision Date: 01/29/20 Archive Date: 01/27/20 DOCKET NO. 17-65 777 DATE: January 29, 2020 REMANDED Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is remanded. Entitlement to service connection for right above the knee amputation, to include as secondary to type II diabetes mellitus, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to July 1976 and September 1977 to August 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs Regional Office (RO). In December 2017, the Veteran requested a Board hearing in Washington, D.C.; however, he did not appear for the hearing scheduled in December 2019. Neither the Veteran nor his representative have indicated a continued desire for a hearing. As such, the Board considers the hearing request withdrawn. See 38 C.F.R. § 20.704(d). The Board notes that the February 2015 rating decision also denied the Veteran’s claims for service connection for a right shoulder condition and entitlement to special monthly compensation based on aid and attendance/housebound status. However, in the April 2015 notice of disagreement, the Veteran only requested that his claims for entitlement to service connection for diabetes mellitus and right above the knee amputation and entitlement to a TDIU be reconsidered; as such, those were the only issues included on the November 2017 statement of the case (SOC). In the December 2017 substantive appeal form, the Veteran indicated that he was seeking service connection for high blood pressure, loss of both legs, heart disease, hepatitis C, rheumatism, and arthritis, in addition to the issues listed on the November 2017 SOC. However, VA's adjudication regulations require that all claims be filed on a standard form. See 38 C.F.R. § 3.151. Thus, as the Veteran did not include the additional claims of entitlement on his initial claim, and did not subsequently submit the claims on the prescribed form, VA Form 20-0995, a claim for these benefits has not been received. Accordingly, the only issues on appeal are entitlement to service connection for diabetes mellitus and right above the knee amputation and entitlement to a TDIU. The Board also notes that the Veteran submitted a supplemental claim for service connection for left below the knee amputation, to include as secondary to type II diabetes mellitus, in November 2019. See November 2019 Other. However, the matter has not been addressed by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. 1. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure, is remanded. The Board’s review of the claims file reveals that further action on the claim of entitlement to service connection for diabetes mellitus is needed. The Veteran states that his diagnosed diabetes mellitus disability is due to herbicide agent exposure during active service. Specifically, the Veteran reported that he served on the gun line on board the USS John Paul Jones, DDG-32, between 1973 and 1975, and stated that the vessel was stationed off the coast of the Republic of Vietnam during that time. The Veteran also reported that he was on the USS John Paul Jones during the evacuation of the Vietnam, and estimated that the ship was anchored approximately half a mile from Vietnam’s shoreline. See December 2017 Form 9; December 2019 Appellate Brief. A review of his military personnel records (MPRs) shows that the Veteran served aboard the USS John Paul Jones, DDG-32, from March 1974 to July 1976. See March 2014 Military Personnel Record. In support of his claim, the Veteran submitted an undated article titled “Ships’ History (DDG 32),” which notes that the USS John Paul Jones, DDG 32, participated in Operations Eagle Pull and Frequent Winds and assisted in the evacuations of United States citizens from Cambodia and the Republic of Vietnam. See September 2016 Correspondence. If a veteran can establish certain elements, he or she need not prove actual exposure to herbicide agents while serving in the Republic of Vietnam. For this presumption to apply, the veteran must establish (1) that he or she has one of the diseases listed in § 3.309(e), and (2) that he or she "served offshore in the Republic of Vietnam" between January 9, 1962, and May 7, 1975. 38 U.S.C.§ 1116A(a); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). In this context, “offshore in the Republic of Vietnam” refers to a geographical area within 12 nautical miles of Vietnam’s shoreline. See 38 U.S.C.§ 1116A(a); VAOPGCPREC 3-2019 (December 13, 2019); see also Procopio v. Wilkie, 913 F.3d 1317 (Fed. Cir. 2019). The Board finds that it is unclear from the record whether the USS John Paul Jones, DDG-32, was within the 12 nautical mile territorial sea of the Republic of Vietnam between March 1974 and July 1976, and as a result, whether the Veteran is presumed to have been exposed to herbicide agents during service. Based on the foregoing, the Board finds a remand is warranted to obtain any records, including any additional MPRs or other official documents showing the Veteran's ship assignments and dates and ship deck logs noting the location of the USS John Paul Jones, DDG-32, dated from 1974 through 1976. 2. Entitlement to service connection for right above the knee amputation, to include as secondary to type II diabetes mellitus, is remanded. 3. Entitlement to a TDIU is remanded. The Veteran states that his right leg above the knee amputation is secondary to his diabetes mellitus. Similarly, the Veteran's claim for entitlement to a TDIU depends on the outcome of his claims for service connection for diabetes mellitus and right above the knee amputation. As the Veteran’s claim for entitlement to service connection for diabetes mellitus is being remanded, consideration of his claims for service connection for right above the knee amputation and entitlement to a TDIU, at this juncture, would be premature. It appears they are intertwined with the remanded claim on appeal because the Veteran is asserting that the knee amputation is secondary to his diabetes and that he cannot work due to his diabetes related complications. Based on the foregoing, the Board finds that a remand of these matters is also warranted. The matters are REMANDED for the following action: 1. Contact the JSRRC or any other organization that would have possession of relevant documents indicating whether the USS John Paul Jones, DDG 32, served within 12 nautical miles of the Republic of Vietnam between March 1974 and July 1976. Associate all relevant deck logs from the USS John Paul Jones, DDG 32, or other necessary documentation dated from March 1974 through July 1976 with the Veteran's claims file. If any such records are unavailable, a formal finding of unavailability should be made and associated with the claims file. (Continued on the next page)   2. After these records are received and reviewed, conduct any additional development deemed necessary, to include obtaining additional VA examinations or medical opinions. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Law Clerk 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.