Citation Nr: 22018345 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-56 877 DATE: March 28, 2022 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for type 2 diabetes mellitus is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to February 1973. In October 2021, a virtual hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for type 2 diabetes mellitus. 3. Entitlement to service connection for left lower extremity peripheral neuropathy. 4. Entitlement to service connection for right lower extremity peripheral neuropathy. The Veteran contends that his currently diagnosed prostate cancer, type 2 diabetes mellitus, left lower extremity peripheral neuropathy, and right lower extremity peripheral neuropathy are each related to his military service. He has specifically alleged that he was exposed to herbicide agents during his service in the Navy, to include while serving aboard the USS America (CVA-66) while at Yankee Station at the Mekong Delta in the Gulf of Tonkin, off the coast of Vietnam, from May 1970 to November 1970. He additionally contends that his current left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy may also be secondary to his type 2 diabetes mellitus. Prostate cancer and type 2 diabetes mellitus are both on the list of diseases presumed to be related to herbicide agent exposure, if such diseases manifest to a degree of 10 percent or more at any time after service. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Early-onset peripheral neuropathy is also on the list of diseases presumed to be related to herbicide agent exposure if such disease manifests to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. See id. The medical evidence of record documents that the Veteran has been diagnosed with type 2 diabetes mellitus (as noted in a November 2000 private treatment record), bilateral lower extremity diabetic peripheral neuropathy (as noted at a March 2008 VA Agent Orange examination), and prostate cancer (as noted in a February 2017 VA treatment record). The Veteran's service personnel records document that he served aboard the USS America (CVA-66) from October 1969 to March 1972. For the year 1970, his Leave Account shows that he did not take any leave from the USS America in 1970 until December 29, 1970. His service personnel records and his DD Form 214 show that he was awarded the Meritorious Unit Commendation for meritorious service from May 26, 1970 to November 8, 1970 while the USS America was engaged in combat operations in Southeast Asia and task-force operations in Northeast Asia. His service personnel records and a DD Form 215 also show that he was awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal with Device (1960-) for service on board the USS America. In November 2007, the National Personnel Records Center (NPRC) responded to VA's information request by stating that the NPRC was unable to determine whether or not this Veteran had "in country" service in the Republic of Viet Nam, and that the Veteran's record indicated that he served aboard the USS America "which was in official waters of the Republic of Viet Nam from 05/17/1970 to one day only, 05/19/1970 to one day only, 05/24/1970 to 06/16/1970, 06/28/1970 to 07/13/1970, 07/20/1970 to 08/04/1970, 08/24/1970 to 09/18/1970, and 10/13/1970 to 11/09/1970." However, the term "official waters of the Republic of Viet Nam" was not defined. As such, the record is unclear as to whether the USS America was within the 12 nautical mile radius of Vietnam at any time while the Veteran was serving aboard. 38 C.F.R. § 3.307(a)(6)(iii); Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019) (codified at 38 U.S.C. § 1116A). On remand, additional development must be undertaken to determine whether the Veteran's service aboard the USS America involved service "offshore of Vietnam" as defined by the Blue Water Navy Vietnam Veterans Act of 2019 in order to determine whether he might qualify as a Blue Water Veteran (which would allow for VA to presume that he was exposed to herbicide agents in service). Furthermore, if and only if the development undertaken on remand does not show that the Veteran had service "offshore of Vietnam" as defined by the Blue Water Navy Vietnam Veterans Act of 2019, then he should be scheduled for an examination with a medical opinion addressing whether his current prostate cancer may have begun during his active service (or within one year of service discharge) or is otherwise related to any incident of his active service, with specific consideration given to pertinent service treatment records (STRs) which include a January 1969 pre-induction Report of Medical History (noting prostate gland troubles "occurred 3 yrs ago, no sx [symptoms] now") and an August 1969 STR (noting blood in the stool for two days, that he had had such in the past and was told it was secondary to prostatitis, and that his prostate was slightly enlarged and non-tender on examination). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities on appeal at any time during the appeal period, and make two requests for the authorized records from each identified provider (unless it is clear after the first request that a second request would be futile) 2. Obtain the Veteran's VA treatment records for the period from November 2021 to the present. 3. Complete all development necessary to determine whether the Veteran's service aboard the USS America (from October 1969 to March 1972, and in particular from May 1970 to November 1970) involved service "offshore of Vietnam" as defined by the Blue Water Navy Vietnam Veterans Act of 2019. 4. If and only if the development undertaken in Instruction #3 does not show that the Veteran had service "offshore of Vietnam" as defined by the Blue Water Navy Vietnam Veterans Act of 2019, then the following additional development should be undertaken: After all requested records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician (or a telehealth interview if an in-person examination is not feasible) to determine the nature and etiology of his current prostate cancer. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. The examiner should provide an opinion as to whether it is at least as likely as not (approximately a 50 percent or greater probability) that the Veteran's prostate cancer began during his active service (or within one year of service discharge) or is otherwise related to any incident of his active service, with specific consideration given to pertinent STRs which include a January 1969 pre-induction Report of Medical History noting prostate gland troubles ("occurred 3 yrs ago, no sx [symptoms] now") and an August 1969 STR (noting blood in the stool for two days, that he had had such in the past and was told it was secondary to prostatitis, and that his prostate was slightly enlarged and non-tender on examination). A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. B. Yantz, Counsel The Board's decision in this case is binding only with respect to the instant matter(s) decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.