Citation Nr: 21001862 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-24 775 DATE: January 12, 2021 REMANDED 1. Entitlement to service connection for ischemic heart disease, to include as due to exposure to Agent Orange is remanded. 2. Entitlement to service connection for type 2 diabetes mellitus, to include as due to exposure to Agent Orange is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from May 1967 to August 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from June 2012 and September 2012 rating decisions. In December 2018, a video conference hearing was held before the undersigned; a transcript is in the record. In May 2019, the matters were remanded for additional development. 1. 2. Entitlement to service connection for ischemic heart disease and type 2 diabetes mellitus, to include as due to exposure to Agent Orange. Initially, the Board notes that CAPRI records have been obtained and confirm diagnoses of coronary artery disease, and type 2 diabetes mellitus. See March 2020 CAPRI records. However, the Board finds that there has not been substantial compliance with the previous remand directives, and that corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The May 2019 Board remand ordered that exhaustive development for all pertinent information bearing on the presence of the USS Bream and/or USS Volador within the 12 nautical miles limit of the territorial waters of Vietnam and forward it to the JSRRC with a request for a memorandum regarding the likelihood that the Veteran was exposed to Agent Orange by virtue of his presence within the 12 nautical miles limit of the territorial waters of Vietnam while serving on the USS Bream or USS Volador. In response, the logbooks of the USS Bream for the relevant period were obtained. Additionally, there is a March 2020 Memorandum which found exposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See March 2020 VA Memo. The memorandum appears to responsive as to whether or not the Veteran came within the 12 nautical miles limit of the territorial waters of Vietnam while on the USS Bream. However, the record does not include logbooks of the USS Volador (or document an effort to obtain them). Therefore, the Board is unable to determine whether the March 2020 memorandum received is responsive to all development sought, and specifically regarding possible exposure from service on the USS Volador. As noted on the May 2019 remand, the Veteran’s performance appraisals confirm he was on the USS Volador in October 1969, February 1970, April 1970, and August 1970 (His DD 214 confirms his last duty station was the USS Volador in August 1970). Additionally, it has been previously noted that the USS Volador was in the official waters of the Republic of Vietnam from December 11, 1969 to December 13, 1969, and December 16, 1969 to December 31, 1969. See Military Personnel Record received June 2011. Accordingly, further development is necessary for proper adjudication of this claim. See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). The matters are REMANDED for the following: 1. Arrange for exhaustive development for all pertinent information bearing on the presence of the USS Volador within the 12 nautical mile limit of the territorial waters of Vietnam (including for available logbooks for the pertinent period of the Veteran’s service on board), and forward it to the JSRRC with a request for a memorandum regarding the likelihood that the Veteran was exposed to Agent Orange by virtue of presence in the territorial waters of Vietnam while serving on the USS Volador. The response should address: Was the USS Volador located within the twelve nautical mile territorial seas of Vietnam while the Veteran was serving on this vessel? 2. Then readjudicate the claims on appeal considering the guidance provided by CAVC in Procipio. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.