Citation Nr: 21002133 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-13 876 DATE: January 12, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1973 to January 1977. This appeal to the Board of Veterans’ Appeals (Board) is from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In support of this claim, the Veteran testified at a virtual hearing in May 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Entitlement to service connection for prostate cancer is remanded. While testifying during his hearing, and in his statements and pleadings submitted at other times during the pendency of his appeal, the Veteran indicated he believes his prostate cancer is the result of exposure to Agent Orange while serving on a ship that navigated within the 12-nautical mile radius off the coast of the Republic of Vietnam. He says he served on the USS Sterett that came into contact with supply ships (providing food and fuel) – including especially the USS NS Taluga (fueler) and USS Reasoner (constant companion, including cruising from port or at port together) that came into contact with Agent Orange since they docked in the port of the Republic of Vietnam The Veteran’s military personnel records confirm he served on the USS Sterett. Under the recent Blue Water Navy Vietnam Veterans Act of 2019 (the Act), new 38 U.S.C. § 1116A(b) extends the presumption of herbicide exposure to naval veterans who served “offshore of the Republic of Vietnam” between January 9, 1962, and May 7, 1975 (i.e., during the Vietnam era). See Pub. Law No. 116-23. New 38 U.S.C. § 1116A(d) provides that “the Secretary shall treat a location as being offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam” that intersects with certain points listed in the new section. This new § 1116A essentially codifies the recent holding by the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) that naval Veterans “who served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ are entitled to § 1116’s presumption” of herbicide exposure. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). Because of the timing of the Procopio decision and VA not lifting the temporary stay of cases possibly affected by it until more recently, in January 2020, the agency of original jurisdiction (AOJ), i.e., RO has not had opportunity to determine whether the Veteran’s vessel came within the required 12 nautical miles of the coast of Vietnam to warrant presumptive exposure to an herbicide agent. This determination is critically important since prostate cancer is one of the diseases presumptively associated with exposure to Agent Orange. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6); 3.309(e).   Accordingly, this claim is REMANDED for the following action: Clarify whether the Veteran’s ship navigated within the 12 nautical mile radius of the coast of Vietnam that is contemplated by the new 38 U.S.C. § 1116A(d) and holding in Procopio. If it is determined there is a presumption of exposure to herbicides off the coast of Vietnam because his ship navigated within that designated territorial boundary, then his prostate cancer would be presumptively associated with that exposure absent affirmative indication of some other cause for this disease. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.