Citation Nr: 1800465 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-08 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for prostate cancer due to exposure to herbicide agents. 2. Entitlement to service connection for Parkinson's disease (originally claimed as essential tremors) due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to May 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Nashville RO has current jurisdiction. In his March 2010 VA Form 9, the Veteran limited the appeal to the claims listed on the title page above. In February 2014 and December 2015, the Board remanded the appeal for further development. After undertaking efforts at development, the RO continued to deny the claims (as reflected in a May 2017supplemental statement of the case (SSOC)) and returned these matters on appeal to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. The Veteran has current diagnoses of prostate cancer and Parkinson's Disease. 2. The evidence of record is at least evenly balanced as to whether the Veteran set foot in Vietnam. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection prostate cancer as due to exposure to certain herbicide agents during active military service are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for Parkinson's Disease as due to exposure to certain herbicide agents during active military service are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). In this case, the Board is granting in full the benefits sought on appeal with respect to the Veteran's service connection claims for prostate cancer and Parkinson's Disease. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran contends that his prostate cancer and Parkinson's Disease are due to exposure to herbicide agents during active military service. Specifically, the Veteran asserts that he was exposed to herbicides while he served aboard the USS Enterprise in the offshore waterways of the Republic of Vietnam. He contends that he was exposed to herbicides/dioxin through ingesting herbicides from the ships distillation system as well as the spraying of herbicides in the air. The Veteran also stated that he "stepped in" the Republic of Vietnam when he was on liberty. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). With respect to the Veteran's assertion that his prostate cancer and Parkinson's disease are due to herbicide agent exposure, the Veteran must show the following in order to establish presumptive service connection for a disease associated with exposure to herbicide agents: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specific time period prescribed in § 3.307(a)(6)(ii). 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2016). Prostate cancer and Parkinson's disease are listed under the diseases associated with herbicide exposure for purposes of the presumption. 38 C.F.R. § 3.309(e). In assessing the Veteran's service connection claim for prostate cancer and Parkinson's disease, the Board must first determine whether the Veteran currently has the claimed disabilities. Letters dated in June 2011 from the Veteran's private physicians document that the Veteran has been treated since 2007 for Parkinson's disease and carcinoma of the prostate. VA examinations dated in October 2014 also show that the Veteran has current diagnoses of prostate cancer and Parkinson's disease. Thus, the evidence of record shows that the Veteran has current diagnoses of the claimed disabilities. The Board notes that in light of the United States Court of Appeals for Veterans Claims (Court) in Gray v. McDonald, 27 Vet. App. 313 (2015), VA reconsidered the definition of inland and offshore waterways, and on February 5, 2016, the Director of Compensation Service issued additional guidance on this issue. The applicable provisions of the M21-1 Manual were modified, specifically those provisions defining inland waterways and offshore waters and designating some of the specific locations determined to be within those categories. The Manual reaffirmed that the presumption of exposure to Agent Orange requires evidence establishing duty or visitation within the Republic of Vietnam and that service on offshore waters does not establish a presumption of exposure to Agent Orange. See VBA Manual M21-1, IV.ii.1.H.2.a and b. Nonetheless, the Veteran asserts that he set foot on the landmass in Vietnam while on liberty during the time he served on the USS Enterprise. The Veteran's service personnel records show that the Veteran served with the Attack Squadron thirty-six onboard the USS enterprise from October 1965 to June 1966. While a summary of the USS Enterprise command logs do not document that the ship docked, transited inland waterways, or that the ships personnel set foot in the Vietnam, the summary of the USS Enterprise command record reveals that during the time the Veteran was stationed on the USS Enterprise, the ship conducted operations at Dixie Station off the coast of the Republic of Vietnam and in Yankee Station in the Gulf of Tonkin. The evidence of record does not suggest that the Veteran is not credible with respect to his assertion that he set foot in the Republic of Vietnam during liberty. Rather, his statements indicating that he set foot in Vietnam are credible and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The Veteran is therefore presumed to have been exposed to herbicide agents in service. Based on the foregoing, the evidence shows that the Veteran at least as likely as not "set foot" in Vietnam and that he currently has prostate cancer and Parkinson's disease. Furthermore, the evidence of record reflects that the Veteran's prostate cancer and Parkinson's disease are manifested to a compensable level for VA purposes. Accordingly, after resolving reasonable doubt in favor of the Veteran under the specific facts of this case, entitlement to service connection for prostate cancer and Parkinson's disease is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for prostate cancer due to exposure to herbicide agents is granted. Entitlement to service connection for Parkinson's disease (originally claimed as essential tremors) due to exposure to herbicide agents is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs