Citation Nr: 1306579 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 06-23 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for prostate cancer. 2. Entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to May 1967. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied entitlement to service connection for prostate cancer and diabetes. In December 2010, the Board denied the claims. In an August 2012 memorandum decision, United States Court of Appeals for Veterans Claims (the Court) vacated the Board's decision and remanded the claims to the Board. FINDINGS OF FACT 1. The Veteran has been diagnosed with prostate cancer and diabetes mellitus. 2. The Veteran served on board a ship that operated temporarily in Vietnam inland waterways. CONCLUSIONS OF LAW 1. The Veteran is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307 (2012). 2. Prostate cancer is presumed to have been incurred in service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309 (2012). 3. Diabetes mellitus is presumed to have been incurred in service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As the Board is, however, granting the only claims being decided herein, for entitlement to service connection for prostate cancer and diabetes, further discussion of the VCAA is unnecessary. Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001). VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including prostate cancer and diabetes, are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). This case involves the application of the laws and regulations applicable to Agent Orange exposure. The Veteran has been diagnosed with prostate cancer and diabetes. As indicated in his attorney's January 2013 letter, the Veteran's primary argument is that these disabilities are presumed service-connected because he served in Vietnam and is therefore presumed to have been exposed to Agent Orange. For the following reasons, the Board accepts this argument. The Veteran served aboard the U.S.S. Davis, a destroyer that operated in the coastal waters off the shore of Vietnam from March to July 1966. Deck logs from the Davis showed that it anchored in Da Nang Bay, Da Nang Harbor, near the Song Ham Luong River, and off the mouth of the Song Tra Cau River. VA's Adjudication Manual Rewrite provides that when a Veteran claims exposure to herbicides during service aboard a Navy ship that operated on the offshore waters of Vietnam, exposure to Agent Orange should be presumed if the ship operated temporarily on Vietnam inland waterways. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, 10k. In addressing whether service such as the Veteran's service on board the Davis constitutes qualifying service in the inland waters of Vietnam, VA has issued Training Letter (TL) 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era (Sept. 9, 2010). TL 10-06 provides that, when evaluating deck log information, adjudicators should look for statements such as "maneuvering at various speeds into..." and references to such locations as "Cua Viet River," "Saigon River," "Mekong River Delta," and "Ganh Rai Bay" or "Rung Sat Special Zone," keeping in mind that anchoring in one of these locations is not the same as anchoring in an open deep-water port. Rather, "these are inland waterways and the presumption of exposure applies to any anchorage associated with them." Moreover, according to TL 10-06, when deck logs refer to entering or anchoring in the "mouth" of one of these locations, or any other identifiable river location, VA's compensation and pension (C&P) service "has determined that this is sufficient to establish service on the inland waterways." In contrast, service aboard a ship that anchored temporarily in an open deep water harbor or port is not sufficient, and C&P Service considers open water ports such as Da Nang, Cam Ranh Bay, and Vung Tau as extensions of ocean waters and not inland waterways. The evidence from the Davis Deck Logs shows that while it was in some locations that were considered water ports, such as Da Nang Bay and Da Nang Harbor, it was also in other locations such as rivers and their mouths that are of the type identified in TL 10-06 as inland waterways. As the evidence thus establishes that the ship aboard which the Veteran served, the Davis, operated temporarily in Vietnam inland waterways, he "served in the Republic of Vietnam" as that term is used in VA laws and regulations. The Veteran is therefore presumed to have been exposed to Agent Orange, and his prostate cancer and diabetes are presumed to have been incurred in service. 38 U.S.C.A. §§ 1116(a)(1), (f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Entitlement to service connection for prostate cancer and diabetes is therefore warranted on a presumptive basis. ORDER Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for diabetes mellitus is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs