Citation Nr: 20049963 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 17-10 635A DATE: July 28, 2020 REMANDED The claim of entitlement to service connection for diabetes mellitus (DM) as due to herbicide agent exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to June 1971. The Veteran testified at a video conference hearing in July 2020 before the undersigned Veterans law Judge. A transcript of this hearing will be added to the record at a later date. On July 1, 2019, the Chairman of the Board of Veterans’ Appeals issued a Stay of Pending Claims under the Blue Water Navy Vietnam Veterans Act of 2019 (H.R. 299), staying adjudication of all cases that may be affected by the Blue Water Navy Vietnam Veterans Act of 2019, until the effective date of the Act (January 1, 2020). As this effective date has now been reached, this case is no longer subject to the Stay, and the Board will proceed with adjudication. The Veteran contends that his DM is due to his active service including exposure to herbicide agents during his service in Vietnam. Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii) (2019). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e) (2019). DM is among those diseases. In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit held that the phrase “the Republic of Vietnam” includes the 12 nautical mile territorial sea of Vietnam. More recently, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019) (BWNVVA) (codified at 38 U.S.C. §§ 1116A, 1116B, 1822, 3703, 3731). The new law provides, in part, that the presumption of exposure to herbicide agents is available to veterans who served offshore of Vietnam if the location was 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 certain specified points of latitude and longitude. The undersigned recognizes that at the hearing the Veteran was informed the requirement to find presumption of exposure to Agent Orange was that the ship be within 5 nautical miles off the shore of Vietnam. As noted, the requirement under Procopio, supra. is 12 nautical miles. To the extent that there was any confusion during the hearing, the correct requirement is clarified, and the development requested herein will be conducted under the correct parameters of 12 nautical miles. The Veteran contends that while a crewmember of the USS Wiltsie he served in the coastal waters of Vietnam. He testified that while he did not go ashore, he was close enough to the shoreline to see trees and shrubbery. He believed that the ship was less than 5 miles from the shore. Development must be completed to determine whether the Veteran’s ship or ships served within 12 nautical miles of Vietnam at any time while he was on board. The Veteran’s service records confirm service aboard the USS Wiltsie (DD-716) from October 1969 to June 1971. They also reflect that he served briefly on the USS Uhlmann (DD687), and the USS Samuel Gompers (AD37) in the weeks prior to his service on the USS Wiltsie. On remand, all appropriate efforts should be taken to verify whether the Veteran was on board a ship that had presence within the 12-nautical miles of the Vietnam shore. The matter is REMANDED for the following action: 1. All appropriate steps should be taken to determine whether the Veteran’s sea service during the Vietnam War included any presence within the 12-nautical mile territorial sea of the Republic of Vietnam as outlined in the Blue Water Navy Vietnam Veterans Act of 2019. It is noted, the Veteran’s service records confirm service aboard the USS Wiltsie (DD-716) from October 1969 to June 1971. The Veteran also served briefly on the USS Uhlmann (DD687), and the USS Samuel Gompers (AD37) in the weeks prior to his service on the USS Wiltsie. 2. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.