Citation Nr: 1330006 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-22 500A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. 3. Entitlement to service connection for bladder cancer, to include as secondary to prostate cancer. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had 25 years of active duty in the Navy. He served from October 1960 to November 1985. His awards and decorations include the Vietnam Service Medal as well as decorations resulting from his Vietnam service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision of the St. Petersburg, Florida, regional office (RO) of the Department of Veterans' Appeals (VA). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The informal hearing presentation is included in Virtual VA. The February 2009 rating decision denied five claims. The Veteran submitted a notice of disagreement with respect to three of those claims in April 2009: entitlement to service connection for diabetes mellitus, prostate cancer, and bladder cancer. A statement of the case was issued to the Veteran addressing all three issues in May 2010. The Veteran, in his June 2010 VA Form 9, Appeal to Board of Veterans' Appeals, checked the box indicating that he only wished to appeal his diabetes and prostate cancer claims. He did not include the claim of service connection for bladder cancer in his appeal. However, the November 2010 VA Form 8, Certification of Appeal, included the claim for service connection for bladder cancer along with the other two issues. In a precedent case, Percy v. Shinseki, 23 Vet. App. 37 (2009), the appeal involved the question of whether the requirement that a claimant file a timely substantive appeal under 38 U.S.C.A. § 7105(d)(3) is a jurisdictional predicate to the Board's adjudication of a matter. The United States Court of Appeals for Veterans Claims (Court) held in Percy that 38 U.S.C.A. § 7105(d) (3) does not operate as a jurisdictional bar precluding the Board's consideration of an appeal where the substantive appeal is untimely. While the Board's regulations refer to the timely filing of a substantive appeal as constituting a jurisdictional question, the Court stated that it need not provide any deference to this interpretation given that the statute is clear on its face. In this case, as the RO certified the issue of entitlement to service connection for bladder cancer to the Board, this claim will be addressed on appeal. The issue of entitlement to service connection for bladder cancer, to include as secondary to prostate cancer, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served about the USS San Jose from August 1972 to August 1975; ship's logs from the USS San Jose show that this ship anchored at Da Nang, The Republic of Vietnam, on at least 18 occasions while he was aboard. 2. The Veteran has submitted three statements from shipmates, to include a sworn affidavit indicating that his duties frequently took him ashore in Da Nang with work details. 3. The Veteran is presumed to have been exposed to herbicides such as Agent Orange while ashore in Vietnam. 4. Medical evidence confirms that the Veteran has current diagnoses of type II diabetes mellitus and prostate cancer. CONCLUSIONS OF LAW 1. Type II diabetes mellitus is presumed to have been incurred in service due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1116(a) (3), 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.313(a) (2013). 2. Prostate cancer is presumed to have been incurred in service due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1116(a) (3), 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.313(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The Board finds that the duty to notify and duty to assist the Veteran has been met in this case. Furthermore, given the favorable nature of this decision, any failure in the duty to notify or duty to assist is harmless error, as it has failed to result in any prejudice to the Veteran. The Veteran contends that he has developed diabetes mellitus and prostate cancer as a result of herbicide exposure in Vietnam. He served aboard several different vessels during the Vietnam conflict, but states that his duties aboard the USS San Jose took him ashore on many occasions in order to coordinate ship repairs. He believes that evidence of his duties is contained in his personnel records, ships logs, and statements and affidavits from shipmates. The Veteran believes that he was exposed to herbicides while he was on shore, and that his disabilities have developed due to this exposure. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. 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 Vietnam era. 38 C.F.R. § 3.307. "Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). The Board notes the Veteran's contentions that his Vietnam Service Medal should be sufficient to trigger the presumption. In fact, the Federal Circuit recently issued its decision in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), where it confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. A Veteran who never went ashore from ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure. Haas, 525 F.3d at 1193-1194. See also VAOPGCPREC 7-93 [holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace]; and VAOPGCPREC 27-97 [holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam]. In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196. With regard to inland waterways, again, in order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii). See Haas, 525 F.3d at 1187-1190; 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service-connected even though there is no record of such disease during service. These diseases include Type II diabetes and prostate cancer. 38 C.F.R. § 3.309(e). For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). That the Veteran currently has type II diabetes mellitus and prostate cancer is not in dispute. The evidence includes August 2008 records from the Veteran's treating physician, as well as the report of a January 2009 VA examination. These records confirm that the Veteran has current diagnoses of both type II diabetes mellitus and prostate cancer. What has been in dispute is whether the Veteran was ever on shore in Vietnam. The service treatment records are negative for evidence of diabetes and prostate cancer and the Veteran does not contend that he developed either of these disabilities in service. However, if the evidence shows that he was ever on shore in Vietnam, he would be presumed to have been exposed to herbicides such as Agent Orange, both type II diabetes mellitus and prostate cancer would be presumed to be the result of herbicide exposure, and service connection would be warranted. 38 C.F.R. §§ 3.307, 3.309(e). The Veteran's service personnel records are negative for any confirmation that he ever stepped foot in Vietnam. However, these records confirm that he served aboard the USS San Jose from August 1972 to August 1975. The evidence also includes excerpts from the ship's logs, which show that the USS San Jose anchored in Da Nang at least 18 times while the Veteran was stationed aboard. As noted above, merely anchoring in a deep water harbor such as Da Nang does not constitute inland waterway service or qualify as docking to the shore. However, the Veteran has submitted numerous statements that he was assigned to the engineering department of the USS San Jose, and that he was often ordered to go ashore at Da Nang to use their telephone communications to contact the ship repair facility at Subic Bay, Philippines, to make preparations for ship repairs. He says that this was done on the verbal orders of his commanding officer, and that he either took a boat or a helicopter to shore. The Veteran has submitted statements from two shipmates that essentially confirm his contentions that his duties aboard the USS San Jose frequently took him ashore in Da Nang. The Veteran has also submitted a sworn affidavit from an officer of the USS San Jose. The affiant reports that one of his duties was as Flight Deck Helicopter Safety Officer, and as such recalled that the Veteran would often be included in work parties that were flown ashore to Da Nang. The Board finds the statements from the Veteran and his shipmates to be credible. They are consistent with not only the Veteran's contentions but with each other. These statements read in conjunction with the Veteran's personnel records and the ship's logs from the USS San Jose show it is at least as likely as not that the Veteran was ashore in Vietnam, in which case the benefit of the doubt must be afforded to the Veteran. 38 U.S.C.A. § 5107(b). As the evidence establishes that the Veteran's conditions of service involved duty or visitation onshore to Vietnam, he is presumed to have been exposed to herbicides such as Agent Orange. 38 C.F.R. § 3.307. It further follows that the Veteran's type II diabetes mellitus and prostate cancer are both presumed to be the result of this herbicide exposure in service. Entitlement to service connection is therefore established for both of these disabilities. 38 C.F.R. § 3.309(e). ORDER Entitlement to service connection for type II diabetes mellitus is granted. Entitlement to service connection for prostate cancer is granted. REMAND The Veteran contends that he has developed bladder cancer as a result of active service. More specifically, he argues that the radiation treatment required for his prostate cancer burned his bladder and led to the development of the bladder cancer. Service connection is now established for the Veteran's prostate cancer. However, bladder cancer is not among those disabilities listed at 38 C.F.R. § 3.309(e), and may not be presumed to be the result of herbicide exposure. The Board will consider whether or not the bladder cancer has developed as a result of the service connected prostate cancer. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran's August 2008 medical records confirm that he was treated with radiation therapy from January 2004 to June 2004 for his prostate cancer. He was also noted to have been treated with bladder cancer in January 2006. The January 2009 VA examination also notes the radiation therapy for prostate cancer, and indicates that the Veteran was treated for bladder cancer in 2005. However, there is no medical opinion of record that addresses the relationship between the Veteran's bladder cancer to the treatment for his prostate cancer. The Board finds that such an opinion must be obtained before completing adjudication of this issue. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names and addresses of all doctors who have treated him for his bladder cancer, in particular the Dr. Mahaffey that August 2008 records show treated him for this disability. Obtain any VA or other federal treatment records that are identified. If the Veteran submits the necessary releases for private records, obtain these records and place them in the claims folder. The Veteran should be notified that if he chooses not to submit the releases that he may submit the records himself and that ultimately it is his responsibility to see that they are received. 2. After the records requested above have been received and placed in the claims folder or verified to be unavailable, schedule the Veteran for a VA examination of his bladder cancer. The claims folder must be provided to the examiner for use in the study of this case. After examination of the Veteran and review of the record, the examiner should respond to the following: a) Is it as likely as not that the Veteran's bladder cancer was incurred by his service connected prostate cancer, to include radiation treatment for the prostate cancer? b) If the answer to (a) is negative, is it as likely as not that the Veteran's bladder cancer was aggravated (permanently worsened beyond its natural progression) by his service connected prostate cancer, to include radiation treatment for the prostate cancer? If yes, please provide an estimate of the baseline level of disability prior to aggravation. The reasons and bases should be provided for all opinions. If the examiner finds that they are unable to provide any or all of the requested opinion without resorting to mere speculation, the reasons and bases for this opinion should be provided, and any missing evidence that would enable the opinion to be provided should be identified. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs