Citation Nr: 20009633 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-10 548 DATE: February 6, 2020 REMANDED Entitlement to service connection for diabetes mellitus (DM), type II, is remanded. REASONS FOR REMAND The Veteran had active military service from August 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran died in August 2018. Therefore, the Board dismissed this appeal when it considered it in October 2018. In November 2018, the Appellant, the Veteran's widow, requested that the AOJ substitute her. In October 2019, the AOJ granted the Appellant's request. Veterans who served in Vietnam between January 9, 1962, and May 7, 1975, are presumed to have been exposed to herbicide agents, such as Agent Orange, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. §§ 3.307 (a)(6)(iii). In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that the phrase "the Republic of Vietnam" included the 12 nautical mile territorial sea of Vietnam. 913 F.3d 1371 (Fed. Cir. 2019) (en banc). As a result, Procopio extended the presumption of exposure to herbicide agents to veterans who served within that area, and such veterans were entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section’s other requirements. While VA was in the process of implementing Procopio, the U.S. Congress passed the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act), and the President signed it into law on June 25, 2019. The BWN Act extends the existing herbicide agent presumption to veterans who served "offshore of the Republic of Vietnam" during the time period specified in the BWN Act. The BWN Act defines "offshore" as a geographical area "not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting" eleven points of latitude and longitude in a table. The Appellant contends that the Veteran was entitled to service connection for DM due to exposure to herbicide agents, including Agent Orange, during his service in Vietnam based on Procopio and the BWN Act. Specifically, the Appellant contends, as seen in an August 2019 statement, that the Veteran's service aboard the USS Lyman K. Swenson suffices to trigger the "herbicide agent" exposure presumption. Additionally, the Board notes the Veteran's service personnel records include a January 1966 entry stating that the Veteran served in the "Vietnam Combat Zone" while aboard the USS Annapolis and a May 1969 entry stating that the Veteran served in the "Vietnam Combat Zone" while aboard the USS Lyman K. Swenson. Considering the BWN Act, remand is warranted to determine whether the vessels upon which the Veteran served, to include but not limited to USS Annapolis and USS Lyman K. Swenson, were "offshore of the Republic of Vietnam" during the time period specified in the BWN Act. The matters are REMANDED for the following action: Undertake all necessary development to determine when, if ever, the vessels upon which the Veteran served, to include but not limited to USS Annapolis and USS Lyman K. Swenson, were "offshore of the Republic of Vietnam," as defined in the BWN Act, during the time period specified in the BWN Act. Then, cross reference this finding against the Veteran's dates of service aboard the vessels and conduct any other development necessary. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.