Citation Nr: 21001989 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-44 423 DATE: January 12, 2021 REMANDED Service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran served in active duty in the United States Navy from November 1967 to February 1970. In October 2020, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. As will be discussed below, in light of the decision issued by the United States Court of Appeals for the Federal Circuit in Procopio v. Wilkie, 913 F.3d. 1371 (2019) and the enactment of 38 U.S.C. § 1116A it is unclear whether the Veteran served in the Republic of Vietnam and thus the presumption of service connection for veterans who served offshore of the Republic of Vietnam is applicable, i.e., whether the Veteran was within 12 nautical miles of the Republic of Vietnam, the Board must defer this issue pending the development set forth below. See Pelegrini v. Nicholson, 18 Vet. App. 112, 125 (2004); Spencer v. Brown, 4 Vet. App. 283, 230 (1993). The Veteran asserts that service connection is warranted for prostate cancer due to his in-service exposure to agent orange. Further, he testified that he was within 12 nautical miles of the Republic of Vietnam. See BVA hearing transcript (October 2020). In addition, the Veteran reported that he may have been exposed to herbicides while stationed at Subic Bay because he reports that herbicides were present there. The Board acknowledges that the RO denied service connection for his prostate cancer. However, the Board finds that the record does not show if the RO determine if the Veteran served within 12 nautical mile territorial sea of the Republic of Vietnam. In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that the term “Service in the Republic of Vietnam” includes not only service on the landmass and inland waterways, but also service in the territorial sea extending 12 nautical miles from the shores of that nation. A veteran who served in the 12 nautical mile territorial sea of the Republic of Vietnam is entitled to presumptive service connection for exposure to herbicide agents (Agent Orange) under 38 U.S.C. § 1116, so long as they meet the sections other requirements. See Procopio v. Wilkie, 913 F.3d. 1371 (2019) and see also Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966). Thus, in light of Procopio and the Blue water Act, a remand is necessary to determine if the Veteran had any service on any ships in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam during his service. Alternatively, the Board observes that service connection was granted for idiopathic pulmonary fibrosis with bronchiectasis based on a positive VA opinion linking the disability to the Veteran’s in-service chemical exposure. The matter is REMANDED for the following action: 1. Make all appropriate efforts, to include contacting all appropriate official sources, to include the National Personnel Records Center (NPRC), and/or the Joint Services Records Research Center (JSRRC), to determine if the Veteran served within in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam while serving in the United States Navy from November 1967 to February 1970. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine whether it is at least as likely as not that the Veteran’s prostate cancer is related to the Veteran’s acknowledged in-service chemical exposure. Whether a physical examination is necessary is up to the discretion of the VA examiner. In responding to this inquiry, the examiner must acknowledge and discuss the February 2016 VA examiner’s opinion that linked the Veteran’s respiratory disability to in-service chemical exposure while serving in the Philippines. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.