Citation Nr: 21065056 Decision Date: 10/23/21 Archive Date: 10/23/21 DOCKET NO. 17-59 042 DATE: October 23, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II (DM2), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from March 1966 to January 1968, with service aboard the USS Forrestal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) dated in April 2016. A review of the record reveals that on the November 2017 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge of the Board. The Veteran was properly notified of his pending hearing in correspondence dated in August 2021. However, before the hearing was held, the Veteran withdrew this hearing request. 1. Entitlement to service connection for DM2, is remanded. The Veteran is seeking entitlement to service connection for DM2 that he believes is due to his military service, to include as due to exposure to herbicides while stationed onboard the USS Forrestal. Specifically, the Veteran contends that he was on board the USS Forrestal while she participated in Yankee Station off the coast of the Republic of Vietnam in the Gulf of Tonkin. See July 2017 Veteran Correspondence. The Veteran's military personnel records also indicate the USS Forrestal served in the contiguous waterways of Vietnam; however, specific coordinates are not provided. Id. The record reflects that the Veteran has a diagnosis of DM2. See May 2017 VA Diabetes Medical Opinion. The examiner opined that the Veteran does not have a diagnosis of Diabetes Mellitus that is at least as likely as not incurred in or caused by service. Id. As this opinion is conclusory in nature the Board finds it inadequate for rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The record contains a private examination from Dr. W. Y. dated in February 2016, where the Veteran was diagnosed with DM2 with Hyperglycemia. See February 2016 Private Diabetes Examination. As the examination from Dr. W. Y. does not contain an opinion as to the question of nexus between the Veteran's current DM2 and his service, the opinion is inadequate for rating purposes. Furthermore, 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 within the 12 nautical mile territorial sea of the Republic of Vietnam and thus the presumption of service connection for veterans who served offshore of the Republic of Vietnam would be applicable. 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); 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. The matter is REMANDED for the following action: 1. Obtain any additional, relevant private or VA treatment records not presently associated with the claims file. 2. Make all appropriate efforts, to include contacting all appropriate official sources, to determine if the Veteran served within the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam while serving in the United States Navy while onboard the USS Forrestal. (a.) In the event the RO determines the Veteran's service entitles him to the provisions of presumptive service connection, then no further development is warranted as diabetes mellitus is a presumptive condition. 38 C.F.R. § 3.309. (b.) If RO is unable to determine the Veteran served with in 12 nautical miles from the shores of Vietnam, then obtain a medical opinion from a qualified medical professional. The Veteran's entire claims file, to include a copy of this REMAND, must be provided to the VA examiner. (c.) All tests, and studies deemed appropriate by the examiner must be conducted. After performing any required tests, if necessary, and reviewing the entire record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) the diagnosed diabetes is related to the Veteran's active service. Any opinion expressed by VA examiner must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. 3. The AOJ must review the examination reports and opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.