Citation Nr: 21075216 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 04-09 328 DATE: December 17, 2021 REMANDED Entitlement to service connection for coronary artery disease, to include as secondary to type II diabetes mellitus is remanded. Entitlement to service connection for bilateral neuropathy of the feet, to include as secondary to type II diabetes mellitus is remanded. Entitlement to service connection for bilateral vision problems, to include as secondary to type II diabetes mellitus is remanded. Entitlement to service connection for type II diabetes, to include as secondary to herbicide exposure is remanded. Entitlement to service connection for bilateral ulcers of the feet, to include as secondary to type II diabetes mellitus is remanded. Entitlement to service connection for loss of right foot toe, to include as secondary to type II diabetes mellitus is remanded. REASONS FOR REMAND The Veteran had active military service from April 1966 to January 1970. He passed away in April 2007. The appellant, the Veteran's wife, has been substituted as the claimant for this appeal. This case comes before the Board of Veterans' Appeals (Board) on appeal of February 2003 and February 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In October 2021, the RO provided the appellant with a Statement of the Case regarding claims for an increased initial rating and an earlier effective date for the award of service connection for the Veteran's hypertension. As the appellant has not filed a substantive appeal of these issues, and the one-year time period to file an appeal has not yet expired, these claims are not currently on appeal and will not be addressed herein. 1. Entitlement to service connection for type II diabetes, to include as secondary to herbicide exposure is remanded. 2. Entitlement to service connection for coronary artery disease (CAD), to include as secondary to type II diabetes mellitus is remanded. 3. Entitlement to service connection for bilateral neuropathy of the feet, to include as secondary to type II diabetes mellitus is remanded. 4. Entitlement to service connection for bilateral vision problems, to include as secondary to type II diabetes mellitus is remanded. 5. Entitlement to service connection for bilateral ulcers of the feet, to include as secondary to type II diabetes mellitus is remanded. 6. Entitlement to service connection for loss of right foot toe, to include as secondary to type II diabetes mellitus is remanded. The Veteran asserted that his claimed conditions were the result of herbicide agent exposure while serving in the territorial waters of the Republic of Vietnam while aboard the USS Canberra. The Veteran's medical records confirm diagnoses of diabetes mellitus with secondary conditions. The service personnel records show that the Veteran served aboard the USS Canberra while on active-duty service during the Vietnam War era. Previously, VA presumed that a Veteran who served in Vietnam during the Vietnam era from January 9, 1962, to May 7, 1975, was exposed to herbicide agents if the Veteran served on land within the Republic of Vietnam or in the inland waterways of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). There is no regulatory requirement as to how long the veteran was in Vietnam. Even a few hours of service in country are sufficient to establish the presumption of exposure. 38 C.F.R. § 3.307 (a)(6)(iii). Service in Vietnam included service aboard a ship that: (1) served on the inland waterways of Vietnam; (2) went ashore while a ship was operating in Vietnam's close coastal waters; or (3) docked in Vietnam. 38 C.F.R. § 3.307 (a)(6)(iii). Exposure to herbicide agents will be presumed to be the cause of certain enumerated diseases, including ischemic heart disease (to include myocardial infarction, and atherosclerotic cardiovascular disease) and diabetes mellitus type II. 38 C.F.R. § 3.309(e). New precedent establishes that a Veteran 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. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Offshore service qualifying as service in the Republic of Vietnam is now defined as a geographical area "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" eleven points of latitude and longitude listed in a table. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. 116-23, to be codified at 38 U.S.C. § 1116A(c). 38 U.S.C. § 1116A. VA's internal procedures have established a process for adjudicating eligible claims, to include this appeal, to determine whether service qualifies as service in the Republic of Vietnam. The Board must remand for adjudication of the claim for presumptive service connection of diabetes mellitus, to include the possibility of herbicide agent exposure while stationed aboard a ship in Vietnam territorial waters. Additional development is required to determine if the USS Canberra was within Vietnam territorial waters during the time the Veteran was aboard that ship. Here, VA concedes, and deck logs reveal that during the Veteran's duty aboard the USS Canberra, the naval ship engaged in combat experiencing incoming military fire and returning such while operating off the coast of North Vietnam. The ship and its miliary members, to include the Veteran, were recipients of the military's Combat Action Ribbon for engaging in combat with the enemy. Additionally, the Veteran was not provided a VA examination/opinion which addressed any relationship between any of the claimed conditions and military service or his service-connected disabilities. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). Because the Veteran had been diagnosed with disabilities that may have been caused by service, the Board finds that a VA opinion to determine any relationship between the claimed disabilities and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for his claimed condition, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file. 2. Perform all necessary development to determine whether the Veteran's shipboard service, to include aboard the USS Canberra, during the Vietnam War included any presence within the 12-nautical mile territorial sea of the Republic of Vietnam, or any similar area identified in the Blue Water Navy Vietnam Veterans Act of 2019. Contact all appropriate repositories for this information, and if necessary, request the deck logs and/or command histories as appropriate for each ship the Veteran served on, to verify whether they were within the 12-nautical mile territorial sea of the Republic of Vietnam. 3. Obtain a VA medical opinion by an appropriate clinician to determine the nature and etiology of the Veteran's claimed diabetes mellitus. After reviewing the claims file, the examiner is requested to address: (a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's diabetes mellitus was related to his active military service. (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's diabetes mellitus was caused or aggravated by a service-connected disability. A complete rationale for any opinion expressed must be provided. 4. Obtain a VA medical opinion by an appropriate clinician to determine the nature and etiology of the Veteran's claimed heart condition. After reviewing the claims file, the examiner is requested to address: (a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's heart condition was related to his active military service. (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's heart condition was caused or aggravated by a service-connected disability. A complete rationale for any opinion expressed must be provided. 5. Obtain a VA medical opinion by an appropriate clinician to determine the nature and etiology of the Veteran's claimed bilateral ulcers of the feet and loss of right toe. After reviewing the claims file, the examiner is requested to address: (a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral ulcers of the feet and loss of right toe was related to his active military service. (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral foot ulcers or right toe condition was caused or aggravated by a service-connected disability. A complete rationale for any opinion expressed must be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brandon A. Williams, 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.