Citation Nr: 20021823 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-29 822 DATE: March 27, 2020 REMANDED Propriety of the severance of service connection for diabetes mellitus, type II, effective January 31, 2015, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1964 to May 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, he waived Agency of Original Jurisdiction (AOJ) consideration of the evidence received since the February 2018 supplemental statement of the case. Further, while additional evidence was added to the record after the hearing, the AOJ will have opportunity to consider such in the readjudication of the Veteran’s claim on remand. Propriety of the severance of service connection for diabetes mellitus, type II, effective January 31, 2015. By way of background, in November 2014, the AOJ severed service connection for diabetes mellitus, type II, based on a finding that the original award of service connection was clearly and unmistakably erroneous as the evidence failed to show that the Veteran was exposed to herbicide agents coincident with service in the Republic of Vietnam. However, the Veteran contends that he was exposed to herbicide agents while serving aboard the USS Enterprise, USS Sacramento, and/or USS Midway in the official waters of Vietnam. While his service personnel records fail to show that he was aboard the USS Sacramento, such reflect service aboard the USS Enterprise from April 23, 1968, to September 22, 1969, and from October 14, 1971, to April 16, 1973, and the USS Midway from January 31, 1970, to April 15, 1971. Also, the National Personnel Records Center indicated that the USS Enterprise was within the official waters of Vietnam from April 23, 1968, to April 24, 1968, April 30, 1968, to May 21, 1968, May 30, 1968, to June 27, 1968, March 30, 1969, to April 18, 1969, May 22, 1969, to May 24, 1969, and May 29, 1969, to June 17, 1969. The law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, to include diabetes mellitus, type II, that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service, where a veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). However, in January 2019, the Federal Circuit issued a decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), in which it held that, for the purpose of determining whether a veteran may be presumed to have been exposed to herbicide agents, the term “service in the Republic of Vietnam” includes service on the landmass, inland waterways, and in the territorial sea extending 12 nautical miles from the shores of that nation (emphasis added). Thereafter, on June 25, 2019, the Blue Water Navy Vietnam Veterans Act of 2019 was passed. In this regard, such creates a new statue to be codified at 38 U.S.C. § 1116A, which provides that a veteran who, during active military, naval, or air service, served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116A(b). Such further provides that, notwithstanding any other provision of law, for purposes of this section, the Secretary shall treat a location as being offshore of Vietnam if the location is 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 at specified points. 38 U.S.C. § 1116A(d). As the current evidence of record does not definitively show that the Veteran was within 12 nautical miles offshore of the Republic of Vietnam per Procopio and 38 U.S.C. § 1116A, further development is warranted to determine whether the USS Enterprise and/or USS Midway were in the territorial sea of Vietnam, extending 12 nautical miles offshore as contemplated by the relevant legal authority, while he was aboard. The matter is REMANDED for the following action: Conduct any necessary development in order to determine whether the USS Enterprise and/or USS Midway was within 12 nautical miles offshore of the Republic of Vietnam at any time during the periods when the Veteran was aboard (i.e., April 23, 1968, to September 22, 1969, and from October 14, 1971, to April 16, 1973, on the USS Enterprise, and from January 31, 1970, to April 15, 1971, on the USS Midway). All efforts at such verification should be documented. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.