Citation Nr: 21068355
Decision Date: 11/10/21	Archive Date: 11/10/21

DOCKET NO. 13-17 787A
DATE: November 10, 2021

REMANDED

Entitlement to service connection for ischemic heart disease is remanded.

Entitlement to service connection for diabetes mellitus (DM), type II, is remanded.

REASONS FOR REMAND

The Veteran had active military service from July 1962 to July 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA).

The Veteran testified before the undersigned in November 2021.  A transcript is not yet of record.  

In the Agent Orange Act of 1991, Congress created statutory presumptions of service connection for certain diseases caused by exposure to herbicide agents, and it also established a process for VA to add additional medical conditions to the list of presumptions.  In 2019, in Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit reversed its precedent from over a decade earlier to hold that a veteran had "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.  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.  Congress, in response to Procopio, passed the Blue Water Navy Vietnam Veterans Act of 2019 ("the BWN Act"), codified at 38 U.S.C. § 1116A.  This case implicates the BWN Act.

In July 2011, the AOJ found the Veteran had ischemic heart disease and DM, but it denied the Veteran's claims under the prior legal standard discussed above.  It also found the USS Chevalier, the ship upon which the Veteran served, was in the "official waters of Vietnam," from November 3, 1963 to November 9, 1963, February 16, 1965 to March 21, 1965, April 1, 1965 to April 24, 1965, and May 11, 1965 to June 8, 1965.  The Veteran was on the USS Chevalier during all four windows.  This finding by itself, however, is insufficient, to trigger 38 U.S.C. § 1116A, as it does not make clear if the USS Chevalier was within the 12 nautical mile territorial sea of the Republic of Vietnam.  Therefore, remand is warranted.

The matters are REMANDED for the following action:

1. According to the service personnel records in the Veteran's claims file, which were uploaded on December 23, 2010, the Veteran served aboard the USS Chevalier from November 16, 1962, to at least May 16, 1965.  He separated from service on July 1, 1965.  

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Determine when, if ever, the USS Chevalier was in the 12 nautical mile territorial sea of the Republic of Vietnam from November 16, 1962 to July 1, 1965.  Document these findings in the claims file.

2. After completing Directive #1, undertake any additional development necessary.

 

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Sopko, 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.