Citation Nr: 20009944 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 18-13 142 DATE: February 6, 2020 REMANDED Entitlement to service connection for a renal disability, claimed as due to herbicide agent exposure is remanded. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide agent exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to June 1968. 1. Entitlement to service connection for a renal disability, claimed as due to herbicide agent exposure is remanded. 2. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide agent exposure is remanded. The Veteran asserts that renal disability and diabetes mellitus is due to exposure to herbicide agents while serving aboard the USS Eversole. In statement submitted in June 2016, the Veteran stated that he “made frequent deployments to the Tonkin Gulf for plane guard assignments and naval gunfire support duties for ground troops off the coast of Vietnam.” In July 2016, the United States Army Joint Services Records Research Center (JSRRC), reported that the Veteran had no Vietnam, Korean, or Thailand service and that there was no indication of Agent Orange exposure. As service in Vietnam was unable to be verified through the Veteran’s service personnel records and through the Veteran’s file, the Board is unable to determine exposure to herbicide agents without further development. Exposure to herbicide agents was previously only conceded when there was “service in Vietnam” which meant actual service in the country of Vietnam from January 9, 1962, to May 7, 1975, and included service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). (VA’s requirement that a Veteran must have stepped foot on the landmass of Vietnam or the inland waters of Vietnam for herbicide agent exposure presumption is a valid interpretation of the statute); VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off-shore of the Republic of Vietnam is not qualifying service in Vietnam). In other words, for purposes of applying the presumption of exposure to an herbicide agent under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. However, on October 22, 2018, the Chairman of the Board issued, Memorandum No. 01-18-15, “Stay of Adjudication of Appeals for Compensation Based on Alleged Exposure to Herbicide Agents in Offshore Waterways of the Republic of Vietnam.” This Memorandum effectively halted any determination of claimants alleging compensation for exposure to an herbicide agent, as the case of Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), was progressing through the United States Court of Appeals for the Federal Circuit (Federal Circuit) which would have affected those determinations by the Board. On April 1, 2019, the Chairman of the Board issued another Memorandum, Memorandum No. 01-19-02, which lifted the stay previously imposed as the Federal Circuit had made a determination on the presumption of exposure to herbicide agents for those veterans who, during active military, naval, or air service “served in the Republic of Vietnam” from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116(a)(1)(A); 38 C.F.R. § 3.307(a)(6)(iii) (including the waters offshore if the conditions of service involved duty or visitation in the Republic of Vietnam). The Federal Circuit indicated that the phrase “the Republic of Vietnam” as it relates to a determination of who served in the Republic of Vietnam was expanded from the previous definition of just the waters offshore and involving duty or visitation on the actual landmass or on the inland waterways of the Republic of Vietnam to include the 12 nautical miles of the territorial sea of that nation. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). By extension, the presumption of herbicide agent exposure now extends to those Veterans with service in the territorial seas of the Republic of Vietnam, of 12 nautical miles, and those veterans are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet other requirements. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The Federal Circuit did not address what the Board needs for evidence to support finding that the veteran served within the 12 nautical mile territorial sea of the Republic of Vietnam. VA is authorized to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by VA and are consistent with those laws. 38 U.S.C. § 501(a). That includes rules regarding “the nature and extent of proof and evidence” required “to establish the right to benefits,” under 38 U.S.C. § 501(a)(1), and “the methods of making investigations,” 38 U.S.C. § 501(a)(3). The case is remanded for development as to whether the Veteran entered the territorial waters of Vietnam. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Based on all available information, attempt to verify whether the Veteran was exposed to herbicide agents during service aboard the USS Constellation between February 1967 to November 1970. T. Mainelli Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Onyewu, Attorney-Advisor 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.