Citation Nr: 21025624 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 10-36 095A DATE: April 28, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II (to include as due to exposure to herbicide agents) is remanded. Entitlement to service connection for neuropathy of the bilateral upper extremities (including as secondary to diabetes mellitus type II) is remanded. Entitlement to service connection for neuropathy of the bilateral lower extremities (including as secondary to diabetes mellitus type II) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1972 to April 1975. This case has an extensive procedural history. In April 2014, the Board denied entitlement to service connection for diabetes mellitus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2015 Memorandum Decision, the Court vacated the Board’s April 2014 decision and remanded the matter for further development and readjudication. The appeal was subsequently remanded by the Board in September 2016, August 2017, and February 2018. In January 2019, the Board denied entitlement to service connection for the listed issues. The Veteran appealed this decision to the Court. In an October 2019 Order, the Court granted the parties’ Joint Motion for Partial Remand (joint motion), thereby vacating the Board’s January 2019 decision as to the listed issues and remanding the matter for action consistent with the joint motion. In December 2019, the Board sent a letter to the Veteran and his attorney advising that they had 90 days to submit additional evidence and argument. In January 2020, the attorney responded that they had no additional evidence or argument to submit and were waiving any remaining time to do so. Subsequent to this, the Board denied the claims on appeal again on March 3, 2020; however, this decision was later vacated by a Joint Motion for Remand (JMR) granted by the Court on December 7, 2020. The Board reasserts jurisdiction accordingly over the claims on appeal, as listed on the title page, and the Board concludes that a remand is required to afford the Veteran substantial compliance with all prior remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. On January 29, 2019, the Federal Circuit issued a decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the “Republic of Vietnam” includes both its landmass and its territorial sea extending 12 nautical miles off the shore. Per the December 2020 JMR, the Board notes that the Veteran asserts that he was exposed to herbicide agents within “Blue Water” within 12 nautical miles of the shore of the Republic of Vietnam—specifically while aboard the USS Mount Hood. See JMR (Dec. 7, 2020). The Veteran stated that he would submit evidence to this effect; however, none appears to have been associated with the claims file. See id. at Pages 2-3. Ultimately, a remand is required so that the AOJ can more fully document its efforts in substantiating the Veteran’s claims. Although nothing in the service records has so far confirmed inland service in Vietnam, a remand to the AOJ is necessary to ascertain whether the Veteran’s station aboard the USS Mount Hood included any visitation to Vietnam and whether it placed him within 12 nautical miles of the shoreline of the Republic of Vietnam, such that herbicide agent exposure can be presumed. Furthermore, as the Veteran alleges that his neuropathy of the bilateral upper and bilateral lower extremities are due to diabetes mellitus type II—which requires remand due to the Veteran’s Blue Water allegations, the Board determines that the claims are inextricably intertwined for this reason. As a result, the claims for neuropathy are also remanded. The AOJ should take all appropriate action to confirm whether the Veteran’s station aboard the USS Mount Hood brought him to Vietnam or within 12 nautical miles of the shoreline. The matters are REMANDED for the following action: 1. Take all appropriate steps to confirm whether the Veteran served in Vietnam, had visitation to Vietnam, or within 12 nautical miles of Vietnam during his overseas service, to include specifically during the Veteran’s reported station aboard the USS Mount Hood. 2. After completion of the above, readjudicate the appeal on the merits. If the benefit sought is not granted, the appellant and her representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond. J. Connolly Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.