Citation Nr: 21075101 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-39 746 DATE: December 17, 2021 REMANDED Entitlement to service connection for prostate cancer, claimed as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1964 to September 1967. In November 2015, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge. A transcript of the hearing is associated with the claims file. Unfortunately, the Veterans Law Judge who conducted the hearing is no longer employed at the Board. In a November 2021 letter, the Board notified the Veteran of this circumstance and offered him the opportunity to have another Board hearing. That same month, the Veteran responded that he did not want another hearing. The Board has previously remanded this case in June 2018 and May 2020 for further development. Unfortunately, the Board finds that still further agency of original jurisdiction (AOJ) action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, is remanded. The Veteran seeks service connection for prostate cancer, which is presumed to be due to exposure to herbicide agents. 38 C.F.R. § 3.309 (e). As noted in prior remands, the Veteran asserts that he was onboard an aircraft carrying Admiral John Hyland in either late 1965 or early 1966 that flew from Sangley Point, Philippines, to Tan Son Nhut Air Base, Da Nang, and Cam Rahn Bay, in Vietnam. He also asserted that during those stops, as part of his duties as a mechanic, he disembarked to check the aircraft, thereby setting foot on land in Vietnam. The Veteran's military occupational specialty (MOS) was airplane mechanic, and he claimed that he was stationed at Sangley Point until October 1966. The Board previously remanded this case in order to attempt to corroborate the Veteran's claim. On remand, the Veteran specifically asserted that the trip happened at some point during December 1965 to January 1966. However, review of the Patrol Squadron Twenty-Eight (VP-28) history from November 1965 to June 1966 indicated that no aircraft are recorded as landing in Vietnam, nor are any squadron personnel recorded as setting foot in Vietnam. The AOJ further attempted to verify the incident until October 1966; however, there was no evidence to support the claimed incident. Nevertheless, importantly, the Veteran's service personnel records show that he served on the USS Kitty Hawk (CVA-63). Moreover, the National Personnel Records Center has indicated that the USS Kitty Hawk was in the official waters of the Republic of Vietnam from December 3, 1966 to January 3, 1967, from January 17, 1967-February 19, 1967, from March 3, 1967 to March 28, 1967, April 12, 1967 to April 28, 1967 and May 8, 1967 to May 23, 1967. Significantly, the Veteran's service personnel records show that he was awarded Navy Unit Commendation Medal for meritorious service aboard the USS Kitty Hawk from December 1966 to April 1967, during which time the task force launched a series of strikes against installations in North Vietnam. During the appeal, on January 29, 2019, the Federal Circuit issued an en banc precedential decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), holding that a veteran who served within the twelve nautical mile territorial waters of Vietnam was entitled to presumptive service connection under 38 U.S.C. § 1116 (f). Further, on June 25, 2019, Congress enacted the Blue Water Navy Vietnam Veterans Act of 2019, enabling presumptive service connection for veterans who served offshore within twelve nautical miles of Vietnam, but did not go ashore or visit the inland waterways. Pub. L. No. 116-23, 133 Stat. 966 (2019). The AOJ has not attempted to verify whether the USS Kitty Hawk entered within the 12 nautical mile territorial waters of Vietnam while the Veteran was stationed on the ship. A remand is warranted so that the AOJ can undertake this development. The matters are REMANDED for the following action: Request the appropriate source to decide whether the Veteran was stationed on the USS Kitty Hawk while positioned 12 or less nautical miles from the Republic of Vietnam land mass in accordance with the standards and definitions set out in the Blue Water Navy Vietnam Veterans Act of 2019. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.