Citation Nr: 21022216 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-63 051 DATE: April 15, 2021 ORDER Entitlement to service connection for type II diabetes mellitus is granted. FINDING OF FACT 1. The Veteran’s currently diagnosed diabetes mellitus, type II, is presumed to be the result of in-service exposure to herbicide agents. CONCLUSION OF LAW 1. The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to September 1971. This appeal is before the Board of Veterans’ Appeals (Board) on appeal of an August 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in April 2021. 1. Service connection for type II diabetes mellitus is granted Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed diseases (among them type II diabetes mellitus) associated with exposure to herbicide agents used in support of military operations in Vietnam during the Vietnam War Era may be presumed to have been incurred in service. Veterans who served in Vietnam during the Vietnam Era are presumed to have been exposed to such herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In January 2019, the U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 includes the territorial sea of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation. In short, the Federal Court has concluded that a presumption of herbicide exposure may be granted to any Veteran who served within the territorial sea extending 12 nautical miles from the shores of the Republic of Vietnam. See Procopio v. Wilkie, 913 F.3d 1371 (2019). On January 1, 2020, the Blue Water Navy Act went into effect extending the existing presumption of herbicide exposure under 38 U.S.C. § 1116, to include Veterans who served “offshore of the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975.” 38 U.S.C. § 1116A. It defines “offshore” 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 an included table. Id. VA treatment records associated with the claims file confirm the Veteran has been diagnosed with and is in receipt of ongoing treatment for diabetes mellitus, type II. A January 2020 VA Memorandum concedes the Veteran’s exposure to herbicides based on his “duty on the Republic of Vietnam’s inland waterways.” Similarly, a February 2021 VA Memorandum concedes the Veteran’s exposure to herbicides based on his “nautical service in one or more of the approved Republic of Vietnam bays or harbors” and his “nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23.” See 38 U.S.C. § 1116A. Accordingly, the Board finds the Veteran’s diabetes mellitus, type II, is presumed related to in-service exposure to herbicides 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. § 3.309(e). Service connection for type II diabetes mellitus is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K Hughes 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.