Citation Nr: 21072881
Decision Date: 12/06/21	Archive Date: 12/06/21

DOCKET NO. 18-43 592
DATE: December 6, 2021

REMANDED

Entitlement to service connection for diabetes mellitus type II is remanded.

Entitlement to service connection for ischemic heart disease is remanded.

REASONS FOR REMAND

As a preliminary matter, the Board notes that the Veteran attempted to opt-in to the Supplemental Claim Lane under the modernized review system by submitting a VA Form 20-0995 in November 2019.  A claimant with a Legacy appeal can opt in to the modernized review system following the issuance of a statement of the case on or after February 19, 2019.  38 C.F.R. § 19.2.  However, the statement of the case in the present matter was issued in September 2018, well before the effective date set forth in 38 C.F.R. § 19.2.  Additionally, the Veteran has not withdrawn his Legacy appeal.  Of note, his most recent correspondence in November 2019 indicated his desire to file a supplemental claim while simultaneously indicating that his appeal before the Board was still active and he was still waiting for a hearing before a Veterans Law Judge.  This does not constitute a withdrawal of his Legacy appeal.  Likewise, at the August 2021 Board hearing, neither the Veteran nor his representative communicated a desire to withdraw his appeal from the Legacy system.  For these reasons, the Board will proceed to adjudicate these claims under the Legacy system.

The Veteran filed an original claim for service connection for diabetes mellitus and ischemic heart disease in August 2010 that was denied in a June 2011 rating decision.  Claims that were previously disallowed typically require new and material evidence to reopen the claims.  However, the Blue Water Navy Vietnam Veterans Act of 2019 (the BWN Act) has extended the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era.  The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), which held that Veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam are entitled to presumptive service connection under 38 U.S.C. § 1116 so long as they meet the section's other requirements.  In addition, as the BWN Act creates a new basis of entitlement, new and material evidence is not required to reopen the Veteran's previously denied claims.  See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994) (new and material evidence is not required when a liberalizing law creates a new basis of entitlement and the claim is to be reviewed on a de novo basis).  Therefore, the claims for service connection for diabetes mellitus and coronary artery disease may be reviewed on a de novo basis.  

In light of the above, the Board finds that remand is warranted for additional development.  The Veteran has asserted that his naval ship, the U.S.S. Diamondhead, operated along the shores of the Republic of Vietnam.  On remand, an attempt should be made to verify whether the U.S.S. Diamondhead navigated within 12-nautical miles off of the coast of the Republic of Vietnam during the Veteran's period active service.

The matters are REMANDED for the following action:

Attempt to verify the Veteran's asserted in-service exposure to herbicide agents, to include whether the U.S.S. Diamondhead navigated within 12-nautical miles off of the coast of the Republic of Vietnam during the Veteran's period active service.  If more details are needed, contact the Veteran to request the information.  If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure.

 

 

TANYA SMITH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Vang, 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.