Citation Nr: 21024847 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 19-00 733A DATE: April 26, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II as being due to herbicide exposure is remanded. REASONS FOR REMAND The Veteran had active service from October 1968 to October 1972. 1. Entitlement to service connection for diabetes mellitus type II is remanded. The Veteran asserts that entitlement to service connection for diabetes type II is warranted as a result of exposure to herbicide agents during his active service. Based upon a review of the claims file, and as discussed below, the Board finds that remand is warranted for additional development. Specifically, the Veteran has asserted exposure to herbicide agents during active service with Patrol Squadron 48 in Vietnam and Thailand. Service personnel records document the Veteran’s military occupational specialty as an aviation support equipment technician for hydraulics. The evidence shows that he was stationed at Moffett Field, California, on January 3, 1969, and subsequently commenced sea duty on February 27, 1971 with Patrol Squadron 48. A September 2010 Defense Personnel Records Information Retrieval System (DPRIS) response regarding the 1972 command history for Patrol Squadron 48 notes that one VP-48 crew was sent to Cubi Point, Republic of the Philippines (RP), and U-Tapao, Thailand, to evaluate the use of Low Light Level Television for night rigging operations off the southern coast of Vietnam. A subsequent August 2017 DPRIS response concerning the 1971 West Pac deployment of Patrol Squadron 48 notes that the Squadron was based in the Philippines with a small aviation detachment at the Royal Thai Navy Base in U-Tapao, Thailand; however, there was no evidence of personnel performing duty or visitation to the Republic of Vietnam from Patrol Squadron 48 during the period. Additionally, service personnel records document an itinerary showing arrival and departure times in Thailand, including an arrival at 7:45 PM on May 23, 1971, with departure at 9:00 AM on May 24, 1971, and an additional arrival at 1:55 PM on May 26, 1971, with departure at 4:00 PM on May 27, 1971. Notably, based upon the above, the Board concludes that there is no probative evidence that the Veteran’s military occupational specialty involved duties and regular service on the base perimeter at Royal Thai Navy Base in U-Tapao, Thailand. However, the Board is mindful that 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, so long as they meet the section’s other requirements. Although VA has been unable to confirm the Veteran’s report of active service in the Republic of Vietnam, the 1972 command history for Patrol Squadron 48 notes that at least some of the squadron were involved in operations off the southern coast of Vietnam. Accordingly, further development is needed to determine whether any of the Veteran’s service as part of Patrol Squadron 48 placed him within 12 nautical miles from the Vietnamese Coast, such that exposure to herbicide agents may be presumed. Additionally, the Board notes that additional pertinent evidence has been added to the record since the issuance of the December 2018 Statement of the Case (SOC), including relevant service personnel records with no waiver from the Veteran of consideration of newly associated evidence by the Agency of Original Jurisdiction (AOJ) in the first instance. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). As such, following the development discussed above, the AOJ must consider the entire claims file, including consideration of any newly associated evidence in the first instance. The matters are REMANDED for the following action: 1. Contact the JSRRC, or any other appropriate records repository, and/or conduct any other appropriate research to determine whether the Veteran’s service with Patrol Squadron 48 placed him within the 12 nautical mile territorial sea of the Republic of Vietnam. This should involve as many sequential 60-day requests as are required to span the Veteran’s relevant service period. Any response should be clearly documented and made a part of the claims file, and if no documentation is located, a written statement to that effect should be incorporated into the record. 2. After undertaking any additional development which may be necessary, the AOJ should readjudicate the claim based on the entirety of the evidence, to include consideration of all evidence added to the record since the issuance of the December 2018 SOC for the issue on appeal. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.