Citation Nr: 20048083
Decision Date: 07/17/20	Archive Date: 07/17/20

DOCKET NO. 17-03 477
DATE: July 17, 2020

REMANDED

Entitlement to nonservice-connected pension is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1961 to May 1964.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 decision.  The Veteran did not appear for his April 2019 Board hearing.  The notice of hearing was sent to the address of record and the regularity of the mail is presumed.  Consequently, there are no outstanding hearing requests of record.      

In pertinent part, the RO found that the Veteran did not have any qualifying wartime service and thus, he did not meet the basic eligibility requirements for pension.  The Board notes that the Vietnam era covers the period from August 5, 1964, to May 7, 1975, for Veterans who did not serve in Vietnam and from February 28, 1961, to May 7, 1975, for veterans who served “in country.” 38 U.S.C. § 101; 38 C.F.R. § 3.2. 

The Veteran maintains that he was on secret missions in the military, which could have been in Vietnam when he served aboard the USS Richard B. Anderson (DD 786).  See September 2016 notice of disagreement.  His DD-214 shows that he had two years and five months foreign and/or sea service.  On January 29, 2019, the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase “service in the Republic of Vietnam” includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008).  The Court in Procopio further noted that territorial seas have a breadth “not exceeding 12 nautical miles.”  

The Board is aware the Procopio decision pertains to presumptive herbicide exposure and answered the question posed before the Federal Circuit: “Does the phrase served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?”  However, the Board feels that the questions regarding the nature of the Veteran’s service pertinent to Procopio requires further development as there is the potential for the award of pension benefits if he is found to have served “in-country.” 

The matter is REMANDED for the following action:

1. Contact the appropriate record depository to determine whether the USS Richard B. Anderson (DD 786) served in the territorial sea (a breadth not exceeding 12 nautical miles) of the Republic of Vietnam while the Veteran was serving aboard from August 1961 to May 1964. Obtain the deck logs if necessary and associate any records used to find that the ship was near Vietnam (i.e., in the “official waters”) and used to determine whether the ship was within the 12 nautical mile territorial sea of Vietnam while the Veteran was aboard. 

 

2. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. 

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. L. Wallin, 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.