Citation Nr: 21071403 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-44 346 DATE: November 30, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for colon polyps is remanded. Entitlement to service connection for hypertension (HTN) is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to prostate cancer, is remanded. Entitlement to service connection for diabetes mellitus (DM) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1970 to February 1976. He appeals a December 2013 rating decision by the Agency of Original Jurisdiction (AOJ). In the August 2017 VA Form 9, the Veteran requested a Board hearing at a local VA office by videoconference. See August 2017 VA Form 9. In September 2021, the Veteran was notified of a Board videoconference hearing scheduled for November 15, 2021. On November 5, 2021, the Veteran confirmed that he wished to withdraw his request for a Board hearing and cancel the November 15, 2021 hearing. See November 5, 2021 Report of General Information. Thus, the Board hearing is deemed withdrawn and there is no pending hearing request. The Veteran contends that his prostate cancer, colon polyps, HTN, ED, and DM are due to herbicide exposure, to include Agent Orange, while serving in the Navy. See September 2017 VA Form 9. Specifically, he asserts that between the months of January 1973 to July 1973 he was "directly off the coast of Vietnam providing fires [sic] for the Marines that were going into Vietnam" while aboard the U.S.S. Theodore E. Chandler. Id. The Blue Water Navy Vietnam Veterans Act of 2019 (the Act) creates new statutory requirements for the adjudications of certain claims based on veterans' herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. The Act specified that the presumption of exposure to herbicide agents in Vietnam applied to veterans who served offshore 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 at points specified in the Act. Furthermore, on January 29, 2019, the U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held 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. Here, the Veteran's DD-214 indicates that he had foreign and/or sea service totaling 3 years, 7 months, and 10 days. He was also awarded the Vietnam Service Medal with 1 bronze star. See DD-214. The Veteran's personnel records confirm that the Veteran was assigned to Theodore E. Chandler. See military personnel records. However, the Board cannot determine whether Theodore E. Chandler sailed within 12 nautical miles of Vietnam or within the waters outlined in 38 U.S.C. § 1116A while the Veteran was aboard based on the evidence currently of record. VA's duty to assist includes assisting the Veteran in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Here, the AOJ has yet to undertake any development concerning whether Theodore E. Chandler sailed the waters within 12 nautical miles of Vietnam or within the waters outlined in 38 U.S.C. § 1116A while the Veteran was aboard. Thus, the Board finds that remand is necessary to verify whether the Veteran served on board a ship in the 12 nautical mile territorial sea of Vietnam or sailed within the waters outlined in 38 U.S.C. § 1116A, to include obtaining the ship's deck logs and any other official military records that may support said contention. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his prostate cancer, colon polyps, HTN, ED, and DM that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Attempt to verify whether the U.S.S. Theodore E. Chandler sailed within 12 nautical miles of the Republic of Vietnam or sailed within the waters outlined in 38 U.S.C. § 1116A at any time while the Veteran was aboard. This should include obtaining relevant deck logs or any other relevant records that might serve to verify the U.S.S. Theodore E. Chandler's position during the relevant period. If the search for corroborating information leads to negative results, the AOJ should notify the Veteran, explain the efforts taken to obtain this information, and describe any further action to be taken. 3. Thereafter, and after completing any additional development deemed necessary by the then current state of the record, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.