Citation Nr: 21010149 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-53 352 DATE: February 24, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide-agent exposure and/or radiation exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1961 until his honorable discharge in February 1965. This appeal has been advanced on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. §§ 20.902(c) and (d). This case comes before the Board on appeal from an August 2014 rating decision by the Jackson, Mississippi, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for diabetes mellitus, type II (diabetes). In October 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Cleveland, Ohio. A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 90 days to allow for the submission of additional evidence. In a June 2019 decision, the Board denied the Veteran’s claim for service connection for diabetes. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims. Based on a Joint Motion for Partial Remand (JMPR) submitted by the parties, the court entered an order in September 2020 vacating the Board’s decision in part and remanding the matter to the Board for readjudication. The case now returns to the Board. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide-agent exposure and/or radiation exposure, is remanded. VA’s duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Once the duty to assist is triggered, “VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency.” 38 C.F.R. § 3.159(c)(2). VA must continue its efforts to attempt to obtain such records unless “it is reasonably certain that such records do not exist,” 38 U.S.C. § 5103A(c)(2); it is reasonably certain that “further efforts to obtain those records would be futile,” id.; or there is “no reasonable possibility” that any further VA assistance would aid in substantiating the claim, 38 C.F.R. § 3.159(d). When the Board issued its June 2019 decision denying service connection for diabetes, it misinterpreted relevant information relating to the Veteran’s naval service aboard the U.S.S. Kitty Hawk (CVA-63) contained with the record, as pointed out by the parties in their JMPR. In doing so, the Board concluded that during the Veteran’s relevant period of naval service, the U.S.S. Kitty Hawk was not located within 12 nautical miles of the shoreline of Vietnam, i.e., the “Blue Waters.” Thus, the Veteran was not entitled to presumptive service connection based on presumed exposure to herbicide agents under the Blue Water Navy Act of 2019 (the BWN Act). 38 U.S.C. § 1116. After thorough review of the record, the Board finds, consistent with VA’s duty to assist, further development is necessary relating to the presence of the U.S.S. Kitty Hawk within the 12-nautical-mile boundaries of the shoreline of Vietnam during the Veteran’s naval service aboard the vessel. The Board observes the RO issued its August 2014 rating decision and September 2016 statement of the case (SOC) before the enactment of the BWN Act. Thus, the RO did not develop or adjudicate in the first instance whether the U.S.S. Kitty Hawk was present within 12 nautical miles of Vietnam’s shoreline as defined in in the BWN Act during the Veteran’s naval service. Nevertheless, in the September 2016 SOC, the RO stated, “Information obtained from the Naval History and Heritage Command shows that the U.S.S. Kitty Hawk (CVA-63) served in the off-shore (blue waters) of Vietnam during April 1964. (Kitty Hawk II (CVA-63) - Naval History and Heritage Command, www.history.navy.mil).” September 2016 SOC, page 50. The Naval History and Heritage Command (NHHC) relied upon by the RO is of record. The NHHC indicates the following occurred in April 1964 as to the U.S.S. Kitty Hawk: 21 Apr 1964: Following an abortive rightist coup against the Laotian government on 19 April, communist Pathet Lao guerillas threatened that regime. Kitty Hawk steamed to the South China Sea to provide a stabilizing presence in the region. On 18 May, her aircraft began flying low-level aerial reconnaissance missions over Laos, determining that the communists were infiltrating into the area from North Vietnam, part of the system eventually known as the Ho Chi Minh Trail. Three days later, the Seventh Fleet initiated a standing carrier presence at Yankee Station in the Gulf of Tonkin (established as the primary operations area from which carriers would launch strikes against North Vietnam). This information, however, does not provide the Board with sufficient evidence to reasonably establish that the U.S.S. Kitty Hawk was within the 12-nautical-mile boundaries in April 1964. There is no data about the vessel’s actual location on this date. The general location may be the South China Sea near Vietnam, but such information is too general for the Board to determine whether or not the area falls within the BWN Act’s 12-nautical-mile boundaries. The remaining information contained within the NHHC is also of little use at this time. The information reveals that during the Veteran’s relevant naval service, the U.S.S. Kitty Hawk was operating in the “Western Pacific” from September 13, 1962, to April 2, 1963; and October 17, 1963, to July 20, 1964; and in the “Western Pacific/Vietnam” between October 19, 1965, and June 13, 1966. These locations are also too general for the Board to reasonably determine if the vessel was within the 12-nautical-mile boundaries. Finally, the Veteran relies on a September 2014 document, “CV-63 Deployments – Major Events,” that states, “First carrier group deployed off of Vietnam April 1964.” This information too is of little value to the Board because it does not provide sufficient data to determine if the U.S.S. Kitty Hawk was within the 12-nautical-mile boundaries as defined by the BWN Act. Accordingly, the matter is REMANDED for the following actions: 1. Send appropriate correspondence to the Veteran, consistent with VA procedures, inviting him to submit any additional relevant evidence not of record to substantiate his claim for service connection for diabetes mellitus, type II, which may include information about the location of the U.S.S. Kitty Hawk (CVA-63) in relation to his claim. 2. Obtain any of the Veteran’s outstanding VA medical records and associate them with the claims file. 3. Submit appropriate requests to the appropriate agency, such as the Naval History and Heritage Command (NHHC), the National Archives Research Administration (NARA), the Joint Service Records Research Center Division (JSSRC), the United States Department of Defense, or any other appropriate source, requesting copies of deck logs and/or command histories for the U.S.S. Kitty Hawk (CVA-63), and any additional, reasonably relevant service personnel records, during the Veteran’s relevant service period aboard the vessel to attempt to verify whether the vessel was within the territorial waters of the Republic of Vietnam, to include within 12 nautical miles from the shoreline. If multiple requests are required to obtain all the information sought, they should be made. All requests and responses received from each source should be associated with the claims file. If the requested information is unavailable, a formal finding of unavailability should be prepared and associated with the claims file. The RO should pursue all development to its logical conclusion. 4. After completion of the foregoing directives, readjudicate the Veteran’s claim for service connection for diabetes mellitus, type II, to include as due to herbicide-agent exposure and/or radiation exposure. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.