Citation Nr: 21001020 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-45 025 DATE: January 6, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II as due to herbicide exposure is remanded. Entitlement to service connection for multiple myeloma as due to herbicide exposure is remanded. Entitlement to service connection for loss of spleen is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1968 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing in August 2019 which resulted in an inaudible transcript. He was offered an opportunity to testify again before the Board via videoconference in October 2020. A complete transcript of that hearing is associated with the record. 1. Entitlement to service connection for diabetes mellitus, type II as due to herbicide exposure. 2. Entitlement to service connection for multiple myeloma as due to herbicide exposure. 3. Entitlement to service connection for loss of spleen. The Veteran seeks presumptive service connection for exposure to herbicides serving aboard a naval ship, USS Hancock, off the coast of Vietnam during the Vietnam War from 1969 to 1970. Alternatively, he seeks direct service connection. See VA Form 9 dated September 2016. The Veteran states he “was on Blue Water” serving aboard a ship that was “well within the 12 nautical mile limitation required by Congress under the new legislation that began January 2020”. See Hearing Transcript at 2. The Blue Water Navy Vietnam Veteran’s Act of 2019 (“the BWNVV Act”) which took effect on January 1, 2020 adds section 1116A to title 38 of the United States Code. The new section extends the existing Agent Orange Act of 1991 presumption (i.e., diseases covered by section 1116) to veterans who served offshore of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. See 38 U.S.C. § 1116A; VAOPGCPREC 3-2019. The Secretary shall treat a location as being “offshore” of the Republic 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 eleven points of latitude and longitude listed in an included table. See 38 U.S.C. § 1116A (d). Additionally, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently issued a precedential decision in Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), holding that the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 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). Specifically, for the purposes 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. Accordingly, in accordance with the Federal Circuit’s decision in Procopio and to ensure proper development in compliance with the BWNVV Act, the Board finds that remand is necessary. Furthermore, at his hearing, the Veteran testified being treated by a private physician including specialists. See Hearing Transcript at 8,9. Thus, on remand, efforts to obtain such relevant private treatment records pertinent to the claim on appeal should be undertaken. The matters are REMANDED for the following action: 1. Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims file. Contact the Veteran regarding any additional private treatment records and if necessary, obtain authorization to obtain additional evidence pertinent to the claim on appeal that is not currently of record. (Continued on the next page)   2. Undertake necessary action such as obtaining command histories, ship histories, deck logs, deployments or other official source and attempt to verify whether the USS Hancock operated within the 12 nautical mile territorial sea of the Republic of Vietnam during the Veteran’s time aboard the ship from 1969 to 1970. If any relevant information or requested records are not available, or the search for such records or information yields negative results, that fact must clearly be documented in the claims file. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, 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.