Citation Nr: 20006872 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 11-05 039 DATE: January 28, 2020 REMANDED Entitlement to service connection for type II diabetes mellitus, also claimed as secondary to the service-connected hypertension, is remanded. Entitlement to service connection for amputation of three toes of the right foot, claimed as secondary to type II diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to October 1969. In January 2012, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. The VLJ who presided over the hearing is no longer employed by the Board. In October 2019, the Board offered the Veteran an opportunity to testify at a new hearing before a different VLJ. He was informed that if he failed to respond within 30 days it would be assumed that he did not want another hearing. Because he has not responded to the October 2019 letter this case can proceed without a hearing. The Veteran appealed the denial of service connection for diabetes mellitus type II and amputation of three toes of the right foot. According to the Veteran, this amputation was necessary as a result of his diabetes mellitus. During the hearing, the Veteran testified that he served aboard the aircraft carrier USS Wasp. Although he never set foot on the landmass of Vietnam, he testified that he was within 12 to 15 miles off the coast of Vietnam. The Court of Appeals for the Federal Circuit recently determined that “service in the Republic of Vietnam” includes service aboard a ship within 12 nautical miles of the shore of the Republic of Vietnam, which means that the Veteran could potentially be eligible for service connection based on presumed exposure to herbicide agents under 38 C.F.R. §§ 3.307(a)(6)(iii) and 3.309(e). See Procopio v. Wilkie, 913 F.3d 1371, 1380 (2019). The record is insufficient to determine whether the Veteran was within the 12 nautical mile territorial sea of Vietnam during service. Accordingly, a remand is warranted for further development on this matter. The matters are REMANDED for the following action: 1. Attempt to verify whether the Veteran was exposed to herbicide agents during service. Specifically, the AOJ should request the Veteran’s ship assignments and ship deck logs and attempt to determine whether the Veteran was within the 12 nautical mile territorial sea of Vietnam. The AOJ is advised that, during his hearing testimony, the Veteran said he was aboard the USS Wasp and he estimated that, when he was aboard the ship, it was “12 to 15 miles” off the coast of Vietnam. All efforts to obtain this information must be documented in the claims file. If there is a negative response, that response should be documented in the record. (Continued on the next page)   2. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. Michael Nye Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.