Citation Nr: 20052897 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 10-23 118 DATE: August 10, 2020 ORDER Service connection for diabetes mellitus, type II, is granted. FINDINGS OF FACT 1. The Veteran is shown to have been exposed to herbicide agents during service. 2. The Veteran’s diabetes mellitus, type II, is related to herbicide exposure during service. CONCLUSION OF LAW The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1966 to September 1969. In July 2017, the Board issued a decision denying service connection for diabetes mellitus, type II. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and the Board’s decision was vacated pursuant to a February 2020 memorandum decision. The case has now been returned to the Board for further appellate consideration. Entitlement to service connection for diabetes mellitus, type II, The Veteran contends that service connection should be established for diabetes mellitus, type II, based on exposure to herbicide agents while serving in the Republic of Vietnam (RVN). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The statutory provision specifically covering Agent Orange is 38 U.S.C. § 1116. Under 38 U.S.C. § 1116, a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. On March 22, 2019, in Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reversed its precedent from over a decade earlier to hold that a veteran also “served in the Republic of Vietnam” if the veteran’s only service was in the territorial sea of that country, instead of having set foot on land or navigated the inland waterways. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). In Procopio, the Federal Circuit interpreted “served in the Republic of Vietnam” in 38 U.S.C. § 1116(a)(1) to unambiguously include service in the territorial sea of that country. Procopio, 913 F.3d at 1376. The Federal Circuit expressly overruled Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), rev’d 913 F.3d 1371 (Fed. Cir. 2019), which had upheld VA’s “foot-on-land” requirement over a decade earlier. Procopio, 913 F.3d at 1373, 1380. In response to Procopio, the Congress passed, and the President signed into law, the Blue Water Navy Vietnam Veterans Act of 2019 (“the BWN Act”), Pub. L. 116-23, to be codified at 38 U.S.C. § 1116A(c). 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 listed in a table. 38 U.S.C. § 1116A(d). Prior to Procopio, such veterans-known as Blue Water Navy Veterans-did not receive the presumption of herbicide exposure afforded by the Agent Orange Act. The BWN Act codified the Procopio holding. The Act further authorized VA to award disability benefits retroactively to Blue Water Navy veterans, or their survivors, who had previously submitted a claim for benefits that was denied by VA for lack of service on the landmass or inland waterways of Vietnam. The Veteran’s service personnel records show that he served on the aircraft carrier USS Hancock off of the shore of the Republic of Vietnam (RVN). The record also shows that this ship was within the 12 nautical mile limit during the time that the Veteran served onboard. See February 2020 VA Memorandum. As such, in accordance with the BWN and decision of the Court in Procopio, the Veteran is shown to have been exposed to herbicide agents during service. The record also shows the Veteran has a current disability of diabetes mellitus, type II, as noted in a May 2007 statement from his private physician. (Continued on the next page)   Diabetes mellitus may be service connected unless attributable to intercurrent causes. No intercurrent causes have been shown in this case and therefore the Veteran’s diabetes mellitus, type II, is attributable to service and the appeal is allowed. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph P. Gervasio 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.