Citation Nr: 1804156	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO. 17-29 695	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to service connection for adenocarcinoma of the prostate, stage IV, claimed as due to exposure to herbicide agents.  


ATTORNEY FOR THE BOARD

Jonathan M. Estes, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1964 to February 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

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 serve in the Republic of Vietnam, in one of the units designated by the Department of Defense as having served in or near the Korean demilitarized zone (DMZ), or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft, and, thus, he is not presumed to have been exposed to herbicide agents.

2. The evidence of record does not competently and credibly establish that the Veteran was otherwise exposed to herbicide agents as defined by VA regulations during his military service.

3. Adenocarcinoma of the prostate, stage IV, is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. 



CONCLUSION OF LAW

The criteria for service connection for adenocarcinoma of the prostate, stage IV, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Further, the Veteran has not alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. 
§ 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Additionally, where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include malignant tumors, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. 

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, "herbicide agents" are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans 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, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. 

Service in the official waters off the coast of Vietnam does not constitute "service in the Republic of Vietnam."  See VAOPGCPREC 27-97; see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (upholding VA's interpretation of the applicable regulations as requiring that a veteran must actually have been present on the landmass or inland waters of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure).  

In light of Gray v. McDonald, 27 Vet. App. 313 (2016), VA amended its Manual with clear guidance as to how VA defines "inland waterways" and which bodies of water in Vietnam constitute inland waterways.  In this regard, according to the Manual, inland waterways are classified as fresh water rivers, streams, and canals, and similar waterways.  Because these waterways are distinct from ocean waters and related coastal features, service on these waterways is service in the Republic of Vietnam.  VA considers inland waterways to end at their mouth or junction to other offshore water features, as described below.  For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet.  For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean.  M21-1, IV.ii.1.H.2.a.

Further, the following locations meet the criteria for inland waterways of the Republic of Vietnam: all rivers, from their mouth on the coast, or junction with adjoining coastal water feature, and throughout upstream channels and passages within Vietnam; rivers ending in bays or other offshore water features on the coastline end at a notional boundary line drawn across the junction between the river and the offshore water feature; the Mekong River and other rivers with prominent deltas begin at a line drawn across the mouth of each inlet on the outer perimeter of the landmass of the delta; all streams; all canals; and all navigable waterways inside the perimeter of land-type vegetation (e.g., trees and grasses, but not seaweed or kelp).  This is particularly applicable to marshes found in the Rung Sat Special Zone and other Vietnam coastal areas.  M21-1, IV.ii.1.H.2.d.

Offshore waters are the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. This includes salty and brackish waters situated between rivers and the open ocean.  M21-1, IV.ii.1.H.2.b.

Further, as of February 2, 2016, the VA herbicide exposure "ships list" was also updated to reflect the M21-1 amendments.  The amended background section of the document, entitled Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents, states as follows:

According to 38 CFR § 3.307(a)(6)(iii), eligibility for the presumption of Agent Orange exposure requires that a veteran's military service involved "duty or visitation in the Republic of Vietnam" between January 9, 1962 and May 7, 1975.  This includes service within the country of Vietnam itself or aboard a ship that operated on the inland waterways of Vietnam.  However, 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. 

Prostate cancer is among those diseases for which presumptive service connection is available and must manifest to a degree of 10 percent or more at any time after the last exposure to the specific herbicide agents. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

As an initial matter, the Board finds that the evidence of record confirms that the Veteran has a current diagnosis of adenocarcinoma of the prostate (i.e., prostate cancer). Specifically, the Veteran's treatment records show a November 2014 diagnosis of prostate cancer, a prostatectomy in February 2015, and continuing treatment thereafter. 

The Board notes that the Veteran does not allege, nor does the record show, that his prostate cancer manifested during service or within the first year following his discharge from service, he experienced symptoms of prostate cancer continuously since service, or such is otherwise related to service on a direct basis. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory).  In this regard, the Veteran's service treatment records are silent for any complaints, treatment, or diagnoses referable to prostate cancer and the earliest clinical evidence of prostate cancer is dated in November 2014, almost 48 years after his discharge from service.  Furthermore, he has not alleged a continuity of symptomatology since service.

Rather, the Veteran contends that his currently diagnosed adenocarcinoma of the prostate, stage IV, is related to alleged in-service exposure to herbicide agents.  Specifically, he reported in a March 2016 statement that, while on his second cruise to the Western Pacific in the fall of 1965, the USS TICONDEROGA docked at shore in Da Nang Harbor in the Republic of Vietnam for 2 days. He further stated that he went ashore each day for approximately 6 hours each visit. In this regard, he stated that he delivered and picked up mail and, while there, he walked around the base, visited the PX and visited the EM club. He reiterated this account in June 2016 and July 2017 statements, in which he also further contends that he was exposed to herbicide agents and other chemicals from his work on aircraft that flew missions over Vietnam.

The Veteran's service personnel records confirm that he served aboard the USS TICONDEROGA, working with aircraft as Aviation Boatswain Mate-Handlers, for two cruises in the Western Pacific; the first departing from San Diego in April 1964 and returning in December 1964, and the second departing from San Diego in September 1965 and returning in May 1966, although the Veteran separated from service in February 1966.

As noted above, the Veteran has submitted numerous statements in which he has reported that the USS TICONDEROGA docked at shore in Da Nang Harbor in the fall of 1965, during time which he went ashore twice. See e.g. March 2016, June 2016, July 2017 Correspondences. Additionally, he alleged he was exposed to herbicides secondarily from working with aircraft and materials that had substances on them. 

In an effort to determine whether the Veteran was exposed to herbicide agents, the AOJ requested a ship history and deck log record review from the Joint Services Records Research Center (JSRRC).  Specifically, in May 2016, JSRRC reported that the USS TICONDEROGA departed the Naval Station San Diego, California, for a Western Pacific deployment in April 1964. At the completion of her Operational Readiness Inspection in the Hawaiian Operational Area, the USS TICONDEROGA departed Pearl Harbor, Hawaii, on May 4, 1964.  After a Port of Call in Sasebo, Japan, the USS TICONDEROGA departed on July 5, 1964, for operations in the South China Sea until September 1964. The USS TICONDEROGA then conducted Special Operations in the South China Sea, off the coast of the Republic of Vietnam during the period of October 1-November 30. The USS TICONDEROGA returned to the Naval Station, North Island, San Diego, California, on December 15, 1964.  JSRRC stated that, since the USS TICONDEROGA did not arrive in the South China Sea until July of 1964, the deck logs from July 1 through September 1, 1964 submitted by the USS TICONDEROGA were reviewed. On July 2, 1964, the ship was moored in Sasebo, Japan, departing there on July 5, 1964, for Hong Kong and the orders apparently changed as on July 13, 1964, she is recorded as underway from Buckner Bay, Okinawa, to the coastal area off South Vietnam. She remained in that operations area until September 1, 1964, when she is recorded as underway from the Vietnam Operations area to Subic Bay, Republic of the Philippines. The history and deck logs do not document that the ship docked, transited inland waters, or that ships personnel stepped foot in the Republic of Vietnam.

Additionally, in June 2016, JSRRC reported that the Naval History & Heritage Command, Washington Navy Yard, DC, the custodian of US Navy ships histories, does not maintain a 1965 command history for the USS TICONDEROGA; however JSRRC reviewed the September 1965 to April 1966 history submitted by the USS TICONDEROGA.  It is recorded that the USS TICONDEROGA did not depart the United States until September 28, 1965, arriving on Dixie station in the Gulf of Tonkin on November 5, 1965.  During the next six months, the ship spent one hundred and fifteen days on Dixie and Yankee Stations in the Gulf of Tonkin.  On April, 21, 1966, the USS TICONDEROGA departed the gunline for Japan and on to San Diego, California, arriving there on May 13, 1966.  JSRRC also reviewed the November 1-December 3, 1965, deck logs submitted by the USS TICONDEROGA.  It was noted that the deck logs concur with the ship's history.  He ship arrived in the Gulf of Tonkin on November 6, 1965, for operations off the coast of North Vietnam.  The USS TICONDEROGA was underway for Yokosuka, Japan, on December 3, 1965.  The history and deck logs do not document that the ship docked or that ship's personnel stepped foot in the Republic of Vietnam.

Turning to the aircraft theory, the Veteran alleges that crewmembers working with aircraft returning from Vietnam were exposed to contaminants, to include herbicide agents.  However, VA has determined that it could not document or verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. See VA Adjudication Procedure Manual, M21-1MR Part IV.ii.2.C.10.m. Therefore, the Veteran's claim of exposure to herbicide agents while onboard ship via aircraft that returned from Vietnam is too attenuated to establish actual exposure.

The Board acknowledges that the Veteran is competent to establish facts that he is able to perceive through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). As such, the Veteran is competent to report the events that occurred in service, including the locations of such service and his duties during service. However, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra.

In this regard, although the Veteran has consistently maintained that the USS TICONDEROGA docked in Da Nang Harbor, and that he went ashore, there is no corroborating evidence to support his statements. Rather, the historical record of the USS TICONDEROGA is in direct conflict with his statements. Consequently, the Board finds the Veteran's statements regarding the USS TICONDEROGA docking and his presence on shore are not credible. Furthermore, he has not alleged, and the evidence does not show that he served in one of the units designated by the Department of Defense as having served in or near the Korean DMZ, or regularly and repeatedly operated, maintained, or served onboard C-123 aircraft.  As such, a presumption of exposure to herbicide agents is not warranted. See 38 C.F.R. 
§§ 3.307(a)(6)(iii)-(v). Additionally, although the Veteran has alleged he was exposed to herbicide agents from working on aircraft and equipment that flew over Vietnam, he has only submitted speculative statements alleging that those aircraft could have been contaminated. The Veteran has not provided any proof that he was, in fact, exposed to herbicide agents. 

Consequently, based on the foregoing, the Board finds that the Veteran was not presumptively exposed to herbicide agents during service, and the evidence of record does not competently and credibly establish that he was otherwise exposed to herbicide agents during his military service. Furthermore, prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge. As such, service connection for such disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for prostate cancer, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.


ORDER

Service connection for adenocarcinoma of the prostate, stage IV, is denied.




_________________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs