Citation Nr: 21028931 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 20-23 904 DATE: May 12, 2021 ORDER New and material evidence has been received to reopen a claim of service connection for bilateral lower extremity peripheral neuropathy. New and material evidence has been received to reopen the claim of service connection for diabetes mellitus. New and material evidence has been received to reopen the claim of service connection for coronary artery disease. REMANDED Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for coronary artery disease is remanded. FINDINGS OF FACT 1. A June 2013 rating decision denied service connection for bilateral lower extremity peripheral neuropathy, diabetes mellitus, and coronary artery disease. 2. Evidence added to the record since the June 2013 rating decision provides a reasonable possibility of substantiating the claims of service connection for bilateral lower extremity peripheral neuropathy, diabetes mellitus, and coronary artery disease. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral lower extremity peripheral neuropathy. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for coronary artery disease. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1960 to June 1963 and from September 1963 to September 1966. These issues are before the Board of Veterans' Appeals (Board) from a February 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In his March 2018 Notice of Disagreement, the Veteran appealed the issues of service connection for coronary artery disease, hypertension, impotency, bilateral lower extremity peripheral neuropathy, left upper peripheral neuropathy, diabetes mellitus, cataracts, colon cancer, tinnitus, bilateral shoulders, bilateral knees, bilateral ankles, lumbar spine, and right ear hearing loss. The RO issued a Statement of the Case in April 2020 for all fourteen of the issues. However, the Veteran submitted a Form 9 in May 2020 for only coronary artery disease, diabetes mellitus, and bilateral lower extremity peripheral neuropathy. As such, the only issues on appeal before the Board are coronary artery disease, diabetes mellitus, and bilateral lower extremity peripheral neuropathy. In his May 2020 Form 9, the Veteran elected for a live videoconference Board hearing at a local VA office. In February 2021, the Veteran submitted a statement requesting to withdraw the hearing request and to proceed forward with a decision on his claim. The Veteran's representative submitted another statement in March 2021 reiterating that the Veteran requested to withdraw his hearing and for a decision to be made from the record. 38 C.F.R. § 20.704(e). New and Material Evidence The Veteran seeks to reopen his claims of service connection for diabetes mellitus, bilateral lower extremity peripheral neuropathy, and for coronary artery disease, to include as due to exposure to herbicides. These issues were previously denied in a June 2013 rating decision based on a finding that the Veteran was physical present on the ground in the Republic of Vietnam. The RO also found that there was no evidence that the Veteran had any symptoms, any treatment, or any diagnosis for either of the three disorders during military service or within a year from separation. Evidence of record at the time of the June 2013 rating decision included the Veteran's service personnel records which reflected that he served aboard the USS Manatee AO-58, which was in the official waters of the Republic of Vietnam from July 13, 1966 to July 30, 1966 and from August 8, 1966 to August 16, 1966. The evidence also reflected that the Veteran was diagnosed with diabetes, bilateral lower peripheral neuropathy, and coronary artery disease. On January 1, 2019, the Blue Water Navy Act went into effect extending the existing presumption of herbicide (Agent Orange) 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. The Board finds this evidence is "new" in that it had not been previously submitted. Moreover, the evidence is "material" because it relates to an unestablished fact necessary to substantiate the Veteran's claim. Since the June 2013 rating decision, the record reflects the possibility of a presumption of exposure to herbicides during service. This evidence is neither cumulative nor redundant of the evidence of record at the time of the June 2013 rating decision and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, the issues of service connection for coronary artery disease, diabetes mellitus, and bilateral lower extremity peripheral neuropathy are reopened. REASONS FOR REMAND The Veteran does not contend that he served in the Republic of Vietnam or that the USS Manatee AO-58 operated on the Vietnam inland waterways; rather, he claims his ship served off the coast of Vietnam extending up to 12 nautical miles from the shores of Vietnam. 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 38 C.F.R. § 3.307 (a)(6)(iii). The Federal Circuit recently held that "Service in the Republic of Vietnam" includes service on the landmass, inland waterways and in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116 (f) that they "served in the Republic of Vietnam," regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam. The Veteran's personnel records show that he served aboard the USS Manatee AO-58 which was in the official waters of the Republic of Vietnam from July 13, 1966 to July 30, 1966 and from August 8, 1966 to August 16, 1966. However, it remains unclear from the record whether the USS Manatee AO-58 operated within 12 nautical miles from the shores of Vietnam during that time; "official water" is not synonymous with 12 nautical miles. As such, the Board finds that additional development is needed, to include research into ship assignments, dates, and deck logs showing the locations of where the ship traveled between July 13, 1966 to August 16, 1966, to determine whether the USS Manatee AO-58 operated within 12 nautical miles from the shores of Vietnam. The matters are REMANDED for the following action: 1. Contact the National Archives Records Administration (NARA) or any other organization that would have possession of relevant documents indicating whether the USS Manatee AO-58 operated within 12 nautical miles from the shores of Vietnam between July 13, 1966 to July 30, 1966 and from August 8, 1966 to August 16, 1966. Any pertinent deck logs for the USS Manatee AO-58 from July to August 1966 should be obtained. Upon receipt, forward the pertinent documents, to include any deck logs, to the Joint Services Records Research Center (JSRRC) and request that they determine whether the Veteran's ship entered the territorial waters of Vietnam based upon an analysis of the longitude and latitude position charts. All efforts to obtain these records should be documented in the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the Veteran must be notified. 2. Then, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Thereafter, return the appeal to the Board for appellate review. Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, 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.