Citation Nr: 1801747 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-35 616 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure. 2. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide agent exposure. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to prostate cancer with urinary incontinence. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Navy from July 1959 to February 1978. His military decorations include the Combat Action Ribbon. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2014 decision of the Portland, Oregon, Regional Office (RO). In August 2015, the Veteran had an informal conference with a Decision Review Officer. A conference report is in the record. In October 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran did not go ashore to the Republic of Vietnam. 2. Diabetes did not manifest to a compensable degree within one year of service separation. 3. Prostate cancer or diabetes were not caused by any in-service event, injury, disease, or disorder. 4. The Veteran's erectile dysfunction has not been linked by competent evidence to service or to a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 2. The criteria for service connection for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2017). 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA has issued several notices to the Veteran including an October 2013 notice which informed him of the evidence generally needed to support his claims; what actions he needed to undertake; and how VA would assist him in developing his claims. The October 2013 notice was issued to the Veteran prior to the January 2014 rating decision from which the instant appeal arises. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VA's duties to notify and to assist have been met. II. Analyses The Board has reviewed the Veteran's service record and the other facts in this case in light of the applicable law. It is very clear that the Veteran gave both long and valued service to the nation. However, the Board is unable to grant the benefits at issue and the claims must regrettably be denied. Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A. Prostate Cancer with Urinary Incontinence and Type II Diabetes Mellitus Diabetes is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, diabetes will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 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 period beginning on January 9, 1962, and ending on May 7, 1975. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). This does not include service aboard a large ocean-going ship that operated only on the offshore waters of Vietnam, unless evidence shows that a Veteran went ashore. Inland waterways include rivers, canals, estuaries, and deltas. They do not include open deep-water bays and harbors such as those at Da Nang Harbor, Qui Nhon Bay Harbor, Nha Trang Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, or Ganh Rai Bay. These are considered to be part of the offshore waters of Vietnam because of their deep-water anchorage capabilities and open access to the South China Sea. A veteran who served between April 1, 1968, and August 31, 1971, in a unit that operated in or near the Korean Demilitarized Zone (DMZ) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). If a veteran was exposed to an herbicide agent during active service, certain diseases, to include type II diabetes mellitus and prostate cancer, shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). The record indicates that the Veteran has type II diabetes mellitus and prostate cancer. The Veteran served aboard the U.S.S. Bigelow when it docked in Da Nang Harbor in April 1967. VA assumes that crewmembers had the opportunity to go ashore for a work detail or for liberty leave. Any Veteran aboard the ship at the time of docking will be eligible for the presumption of exposure if that Veteran provides a lay statement of personally going ashore. The Veteran stated in March 2015 telephone call with VA and on his September 2015 VA Form 9 that he did not go ashore. There is nothing in the record to indicate that he did go ashore. The U.S.S. Bigelow otherwise operated only on the offshore waters of Vietnam. Therefore, the Veteran is not presumed to have been exposed to herbicide agent. The Veteran reported that while the U.S.S. Bigelow was docked in Da Nang Harbor in April 1967, he had to transfer patients to the U.S.S. Repose. This was a hospital ship that operated continuously on Vietnam coastal waters from 1966-1970, with evidence that crewmembers went ashore on liberty leave. Again, however, the Veteran has asserted that he never went ashore and, therefore, is not presumed to have been exposed to herbicide agent. The Veteran also served aboard the U.S.S. Henry B. Wilson. This was another large ocean-going ship that operated on the offshore waters of Vietnam. It operated on the Mekong River Delta in May 1968 and docked at Da Nang Harbor in April 1967 and September 1971. The record does not indicate, however, that the Veteran served aboard this ship at any of those times. His service personnel records indicate that he reported for service aboard the ship in March 1972. During the time he served aboard the ship, it operated only on the offshore waters of Vietnam. Therefore, the Veteran is not presumed to have been exposed to herbicide agent. The other ships on which the Veteran served were not associated with service in Vietnam. At his October 2017 Board hearing, the Veteran mentioned possible exposure to herbicide agent from the Korean DMZ. There is no indication in the record, however, that the Veteran served in a unit that operated in or near the Korean DMZ. Therefore, he is not entitled to the presumption of herbicide agent exposure. The Veteran is not presumed to have been exposed to herbicide agent during service and service connection on a presumptive basis is not warranted. There is no indication that the Veteran's diabetes became manifest to a compensable degree within one year of service separation. The Veteran separated from service in February 1978. Private treatment records indicate that he met the criteria for a diabetes diagnosis in March 2013. Prior to that, his private treatment records indicated a diagnosis of prediabetes. Therefore, his diabetes is not presumed to have been incurred in service. There is also no indication that prostate cancer or diabetes began in service or were caused by any in-service event, injury, disease, or disorder. The Veteran's January 1978 physical examination for service separation indicates normal findings, other than a vaccine mark on his arm and a scar on his lower lip. On his report of medical history completed at that time, he indicated that he wore glasses or contacts and possibly had hearing loss. The examiner wrote that he had minimal hearing loss and wore glasses but was otherwise normal. No competent medical provider has indicated that any in-service event, injury, disease, or disorder caused the Veteran's prostate cancer or diabetes and the Veteran has not asserted that anything other than herbicide agent caused his disorders. At his October 2017 Board hearing, the Veteran indicated that none of his treating physicians had attributed his diabetes or prostate cancer to herbicide agent exposure. Therefore, service connection on a direct basis is not warranted. As the Veteran is not presumed to have been exposed to herbicide agent in service, and his diabetes did not manifest to a compensable degree within one year of service separation, and no competent medical provider has opined that his diabetes or prostate cancer were caused by any in-service event, injury, disease, or disorder, service connection is not warranted and the claims are denied. B. Erectile Dysfunction Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder has caused or aggravated a nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). As a general matter, laypersons such as the Veteran may competently testify as to matters susceptible of observation by those not medically trained. Although the record does not indicate a diagnosis of erectile dysfunction, the Board will assume its symptoms are present in the Veteran's case. 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). However, the question of what caused a disorder must be resolved by competent medical evidence, which is that provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The record does not contain a competent medical opinion indicating that the Veteran's erectile dysfunction is linked to service or to any service-connected disorder. Service connection is not warranted and the claim is denied. ORDER Service connection for prostate cancer is denied. Service connection for type II diabetes mellitus is denied. Service connection for erectile dysfunction is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs