Citation Nr: 21021648 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-38 608 DATE: April 13, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II (diabetes), to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as due to exposure to herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to March 1970. In May 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran contends that while aboard the USS Tappahannock, this ship was offshore of the Republic of Vietnam during the time frame of January 1969 to June 1969. See February 2013 Statement in Support of Claim. In May 2018, the Board remanded the issues on appeal for further development. Specifically, the Board sent a request to the U.S. Army, Joint Services Records Research Center (JSRRC) to verify whether the USS Tappahannock contained barrels that were labeled “DOW Chemical” and whether there was a chemical spill of the “DOW Chemical” barrels during the Veteran’s service. In a memorandum added to the record in March 2019, the JSRRC concluded that “[i]n the course of its research, JSRRC has reviewed numerous official military documents, ship histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agent, such as Agent Orange, during the Vietnam Era.” Also, the memorandum stated “[t]herefore, the JSRRC can provide no evidence to support a Veteran’s claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era.” However, the Board notes that his memorandum was dated May 1, 2009. The Board finds that is it unclear whether a request was submitted to the JSRRC to verify the Veteran’s specific contentions of exposure to herbicide agents during his service in the US Navy. Particularly, the memorandum of record is dated May 1, 2009. However, the request for verification to the JSRRC was submitted in May 2018. Given such, the Board is requesting another request be sent to JSRRC to verify whether the USS Tappahannock contained barrels that were labeled “DOW Chemical” and whether there was a chemical spill of the “DOW Chemical” barrels during the Veteran’s service. Furthermore, in light of the decision issued by the United States Court of Appeals for the Federal Circuit in Procopio v. Wilkie, 913 F.3d. 1371 (2019) and the enactment of 38 U.S.C. § 1116A it is unclear whether the Veteran served within the 12 nautical mile territorial sea of the Republic of Vietnam and thus the presumption of service connection for veterans who served offshore of the Republic of Vietnam is applicable. In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit held that the term “Service in the Republic of Vietnam” includes not only service on the landmass and inland waterways, but also service in the territorial sea extending 12 nautical miles from the shores of that nation. A veteran who served in the 12 nautical mile territorial sea of the Republic of Vietnam is entitled to presumptive service connection for exposure to herbicide agents (Agent Orange) under 38 U.S.C. § 1116, so long as they meet the sections other requirements. See Procopio v. Wilkie, 913 F.3d. 1371 (2019) and see also Blue Water Navy Vietnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat. 966 ). Thus, in light of Procopio and the Blue water Act, a remand is necessary to determine if the Veteran had any service on any ships in the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam during his service. The matters are REMANDED for the following action: 1. Make all appropriate efforts, to include contacting all appropriate official sources: National Personnel Records Center (NPRC), and/or the Joint Services Records Research Center (JSRRC), to determine if the Veteran served within the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam while serving in the United States Navy from July 1968 to March 1970, specifically to include from January 1969 to June 1969. 2. Contact the JSRRC or other appropriate government records repositories, and attempt to verify the Veteran’s report of herbicide agents. The JSRRC or other appropriate government records repositories, and attempt to verify the Veteran’s report of herbicide agents. Specifically, verify whether the USS Tappahannock contained barrels that were labeled “DOW Chemical” and whether there was a chemical spill (powder and/or liquid) of the “DOW Chemical” barrels during the Veteran’s service abroad the USS Tappahannock. 3. In the event the JSRRC verifies that the Veteran was exposed to herbicide agents during his service, then obtain a medical opinion from a qualified medical professional. The Veteran’s entire claims file, to include a copy of this REMAND, must be provided to the VA examiner. All tests and studies deemed appropriate by the examiner must be conducted. After performing any required tests, if necessary, and reviewing the entire record, the examiner should provide an opinion responding to the following questions: (1) Whether the Veteran had early onset peripheral neuropathy. If it is determined that the Veteran had early onset peripheral neuropathy, then the Board notes no further inquiry is required (early onset peripheral neuropathy is a presumptive service-connected condition). If it is determine that the Veteran did not have early onset peripheral neuropathy, then the examiner should address whether the Veteran’s peripheral neuropathy of the upper and lower extremities is at least as likely as not (50 percent or higher degree of probability) related to the Veteran’s active service, to include as due to his verified exposure to herbicide agents. Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.