Citation Nr: 18140292 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-51 779 DATE: October 2, 2018 ORDER Entitlement to service connection for prostate cancer is denied. REMANDED Entitlement to service connection for an acquired psychiatric condition is remanded. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam era and was not otherwise exposed to herbicides during his military service. 2. The Veteran’s prostate cancer did not manifest in service or for many years thereafter and is not otherwise causally or etiologically related to his military service, including exposure to herbicides. CONCLUSION OF LAW Prostate cancer was not incurred in active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1964 to June 1968, with additional Reservist service. The Veteran was also awarded the Vietnam Service Medal (with one Bronze star) and the Vietnam Campaign Medal (with device). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran perfected his appeal as to the issue of PTSD (See July 2014 Rating Decision, January 2015 Notice of Disagreement, October 2016 Statement of the Case, and October 2016 VA Form 9). The Veteran also perfected his appeal as to the issue of prostate cancer (See May 2016 Rating Decision, May 2016 Notice of Disagreement, October 2016 Statement of the Case, and October 2016 VA Form 9). In light of the United States Court of Appeals for Veterans Claims (Court) holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Veteran’s service connection claim for PTSD has been recharacterized as stated above. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, the Veteran’s claim “cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period; no listed disease is at issue here. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309(a). Service connection may also be presumed for certain listed diseases when manifested to a compensable degree in a Veteran who has been exposed to an herbicide agent such as was used in Vietnam or along the DMZ in Korea. 38 C.F.R. § 3.307 (a)(6). Prostate cancer is a listed disease, and the presumptive period is any time following exposure. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). A Veteran is presumed exposed to herbicides if he served or was present in country, with "boots on the ground" or in the rivers (Brown Water), in Vietnam between January 9, 1962, and May 7, 1975. 38 C.F.R. § 3.307 (a)(6)(iii). Competent medical evidence is evidence 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). Competent lay evidence is 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. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis; a layperson is generally not capable of opining on matters requiring medical knowledge. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.). 1. Entitlement to service connection for prostate cancer. The Veteran contends that service connection is warranted for prostate cancer, to include as secondary to exposure to an herbicide agent. In considering the evidence of record under the laws and regulations, however, the Board concludes that the Veteran is not entitled to service connection for prostate cancer. The available service treatment records are entirely negative for any complaints, treatment, or diagnosis of prostate cancer or precursor problems. The post-service medical evidence is similarly negative for complaints or findings of prostate cancer for many years after the Veteran’s separation from service. Private treatment records show that the Veteran was diagnosed with prostate cancer in January 2016, over 40 years following his separation from service. Moreover, no medical professional has related the Veteran’s current prostate cancer to his active service or any incident therein. The Veteran has not contended otherwise. Service connection on a direct basis is not warranted. Instead, the Veteran has contended that he developed prostate cancer as a result of an herbicide agent, to include Agent Orange, and therefore benefits from presumptive service connection. He has reported that he served aboard the USS Arlington from August 1968 to January 1968, which he claims operated in the inland waterways of the Republic of Vietnam. Additionally, the Veteran reported that he witnessed planes flying overhead the ship that sprayed Agent Orange. In support of his claim, the Veteran provided deployment history which reveals that the USS Arlington deployed to the Western Pacific (WESTPAC) Vietnam between January 1968 to December 1968. The Veteran also provided an article which reveals that the USS Arlington resumed direct communications support for naval units in the Tonkin Gulf in January 1969 and returned to Vietnam toward the end of March 1969 and again onto the Vietnamese Coast in June 1969. The Veteran does not allege that he set foot in Vietnam, only that his ship served in an area so close to shore that he was exposed. His DD-214 indicates that he had two years and nine months of foreign and/or sea service and that he is in receipt of the Vietnam Campaign Medal (with device) and the Vietnam Service Medal (with one Bronze Star). However, the evidence of record does not show that the Veteran actually “set foot” in Vietnam, or that he served in brown water to establish herbicide exposure. See Haas v. Nicholson, 20 Vet. App. 257 (2006), rev’d sub nom. Haas v. Peake, 525 F.3d 1168 (Fed Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). His medals do not establish actual service in the Republic of Vietnam. The Federal Circuit in Haas held that qualifying “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. Moreover, the Republic of Vietnam Campaign Medal (VCM) was awarded to those personnel who (1) served in the Republic of Vietnam for 6 months during a specified period; or, (2) served outside the geographical limits of the Republic of Vietnam but contributed direct combat support to the Republic of Vietnam and Armed Forces for 6 months; or, (3) served in the Republic of Vietnam or outside its geographical limits for less than 6 months but were wounded, captured or killed. See Army Regulation 672-5-1. Therefore, the receipt of such medals does not establish that the Veteran had qualifying service in the Republic of Vietnam. The Board has also considered whether the Veteran’s ship, the USS Arlington, traveled on inland waterways during the applicable period, as the Veteran has contended. Haas, 525 F. 3d at 1187-90. However, the USS Arlington, a communications major relay ship, was a deep water (or “blue water”) vessel. In order for the herbicide exposure presumption to be extended to a Blue Water Navy Veteran, there must be evidence that the Veteran’s ship operated temporarily on the inland waterways of Vietnam or that the Veteran’s ship docked to the shore or a pier and the Veteran went ashore, or other competent credible evidence that the Veteran went ashore. There is not, however, such competent and credible evidence of record in this case. The official list of ships serving in qualifying waters does not include the Arlington. VA defined such waters as “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.” VA determined that Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and, Ganh Rai Bay were considered to be offshore waters of the Republic of Vietnam. In addition, VA updated its list of U.S. Navy and Coast Guard ships associated with military service in the Republic of Vietnam to reflect the new guidance issued with respect to the definition of inland and offshore waterways and possible exposure to herbicide agents. See Vietnam Era Navy Ship Agent Orange Exposure Development Site, http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (updated September 4, 2018). The USS Arlington did serve primarily or temporarily in brown waters, and did not dock in such waters, and hence the Veteran is not presumed exposed to herbicides. The Board notes that as a matter of historical fact that the Arlington was a converted light aircraft carrier used as a communication hub. Her West Pac tours were served primarily in locations such as Yankee Station or Market Time, well off shore. The Veteran’s allegations of exposure are simply not consistent with fact. In light of the above, the Board concludes that the preponderance of the evidence is against a finding that the Veteran served in-country in Vietnam. There is no evidence that the Veteran’s ship, the USS Arlington, operated in inland waters, or would have come close enough to shore to have been exposed to shore-based spraying. Spraying did not take place off Naval vessels. Based on the foregoing, the Veteran is not presumed or shown to actually be exposed to herbicides, and hence service connection on the basis of that presumption is not warranted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric condition is remanded. A September 2013 private treatment record reveals diagnoses of chronic PTSD and recurrent major depressive disorder. This same examiner diagnosed PTSD agin in October 2016. A July 2014 VA examiner reported a diagnosis of an unspecified anxiety disorder, but did not diagnose PTSD. The Board finds all these examinations inadequate. First, they cite the receipt of a bronze star as a basis for conceding a stressor event. The Veteran does have a bronze star, indicating a second award of a Vietnam Service Medal. This is different from a Bronze Star Medal with V device, which is a combat award for valor against the enemy. The Veteran in no way, shape, or form participated in combat and holds no awards indicating otherwise. Second, they conclude PTSD is a warranted diagnosis even while finding the reports of stressors contradictory. Third, the facts and circumstances of the Veteran’s service would not have exposed him to hostile enemy action as he describes. In short, there is no competent and credible evidence to support a finding of a valid stressor of record. Nevertheless, doctors have diagnosed conditions other than PTSD, and it is not clear to what extent military service contributed to such. Remand is required to secure a clear etiology statement. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records, and associate them with the claims file. 2. Schedule the Veteran for a VA Mental Disorders examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently extant acquired psychiatric disorders. For each condition other than PTSD diagnosed, the examiner must opine as to whether it is at least as likely as not (i.e. a 50 percent or better probability) that the psychiatric disability, had its onset during active service, or is otherwise related to the Veteran’s active service. A complete rationale for all opinions must be provided. 3. Readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case. The case should then be returned to the Board for further appellate review, if otherwise in order. WILLIAM H. DONNELLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel