Citation Nr: 21013772
Decision Date: 03/10/21	Archive Date: 03/10/21

DOCKET NO. 17-49 194
DATE: March 10, 2021

REMANDED

Entitlement to service connection for diabetes mellitus type II, to include as secondary to in-service herbicide exposure, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1967 to June 1971.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions rendered in April 2016 and July 2016.

In December 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record.

Entitlement to service connection for diabetes mellitus type II, to include as secondary to in-service herbicide exposure, is remanded.

In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) 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 with respect to presumed exposure to Agent Orange.

The Veteran served aboard the USS HORNET (CVS-12) from September 1968 to October 1970 and was authorized to wear the Vietnam Service Medal with Bronze Star as well as the Vietnam Campaign Medal/Service Ribbon.  In a June 2016 response, the U. S. Army Joint Services Records Research Center (JSRRC) found that to date there was no evidence that indicated that the Veteran was exposed to herbicides.  The Veteran has recently submitted additional evidence in the form of deck logs from the USS Hornet as well as pages from the USS Hornet cruise book.  VA must now determine if that ship traveled in the 12 nautical mile territorial sea of the Republic of Vietnam while the Veteran was stationed aboard. 

The AOJ should conduct any necessary development to determine if the Veteran was exposed to herbicides based on his nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23.

The matter is REMANDED for the following actions:

1. Attempt to verify the Veteran’s asserted in-service exposure to herbicides.  Specifically determine if the USS HORNET (CVS-12) traveled in the 12 nautical mile territorial sea of the Republic of Vietnam when the Veteran was stationed aboard from September 1968 to October 1970.  If more details are needed, or additional deck logs must be obtained, conduct the appropriate development.

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2. After completing the above action and any other necessary development, the claim on appeal must be readjudicated, taking into consideration all relevant evidence associated with the evidence of record since the September 2017 SOC.  If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. D. Deane, 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.