Citation Nr: 18142710 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-14 516 DATE: October 16, 2018 ORDER Entitlement to service connection for the cause of the Veteran's death is granted. FINDING OF FACT The evidence is at least in equipoise that the USS Fletcher went up the Mekong River while the Veteran was serving onboard in December 1968. CONCLUSION OF LAW The criteria for service connection for the cause of the Veteran’s death have been met. 38 U.S.C. §§ 1310, 5107(b); 38 C.F.R. § 3.312. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1967 to October 1969. The Board thanks the Veteran’s family for his service. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision. In May 2018, the Appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. The Veteran waived consideration by a Department of Veterans Affairs (VA) Regional Office (RO) for any additionally received evidence. A transcript of the hearing is associated with the claims file. To establish service connection for the cause of the Veteran’s death, the evidence must show that a service-connected disability was either the principal cause or a contributory cause of death. For a service-connected disability to be the principal (primary) cause of death, it must singly or with some other condition be the immediate or underlying cause of death or be etiologically related. In order to be a contributory cause of death, it must be shown that there were “debilitating effects” due to a service-connected disability that made the Veteran “materially less capable” of resisting the effects of the fatal disease or that a service-connected disability had “material influence in accelerating death,” thereby contributing substantially or materially to the cause of death. See Lathan v. Brown, 7 Vet. App. 359 (1995); 38 C.F.R. § 3.312(c)(1). The Veteran’s death certificate shows that he passed away in July 2012. His immediate cause of death was cardio pulmonary arrest caused by metastatic cancer to the bones, the underlying cause of which is stated to be prostate cancer. Medical records show that the Veteran had suffered from prostate cancer for years prior to his death, and he had been seeking service connection for the condition since February 2008. Because the Veteran’s prostate cancer is established to be his underlying cause of death, but the condition was not service-connected at the time of his death, the primary issue in this claim is whether that condition meets the standard to be a service connected disability. Neither the Veteran nor the Appellant asserted that the Veteran’s prostate cancer began in or was causally related to any incident in service other than exposure to herbicide agents. As will be discussed in further detail below, the Board finds that the evidence is at least in equipoise that the Veteran served upon “brown water” in Vietnam while he was in service, and is thus eligible for presumptive service connection for prostate cancer. 1. Presumptive Service Connection for Herbicide Agent Exposure VA regulations provide that certain diseases associated with exposure to herbicide agents, including prostate cancer, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran who, during active 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. 38 C.F.R. § 3.307(a). Such service must be either “foot-on-ground” service or service on the inland waterways in the interior of the Republic of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); 66 Fed. Reg. 23,166 (May 8, 2001); VAOPGCPREC 27-97. The VA must use its considered judgment when determining what waters constitute “inland waterways” by considering the likelihood that Veterans serving on such waters may have actually been exposed to herbicide agents in the course of their duties. Gray v McDonald, 27 Vet. App. 313 (2015). Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Although several potential instances of exposure to herbicide agents are put forth in the record, the Board will focus its analysis on one instance that serves as the basis to grant the claim on appeal. In February 2010 the Veteran submitted a statement to the VA indicating that while he was onboard the USS Fletcher, the ship docked at Na Tran and “patrolled up and down the rivers[.]” Although the Veteran never gave any more specific information about what rivers the ship may have gone up or when, another statement submitted in May 2018 provides a specific instance for consideration. A childhood friend of the Veteran wrote a letter to the Appellant in October 2012, after the Veteran’s death, explaining that he and the Veteran intended to join the Navy together and, after being put on different ships, stayed in touch through letters and phone calls. The friend recounted a story the Veteran told him that stood out over the years, in which the Veteran’s ship “was ordered to sail up the Mekong River, at night… [and] at about five miles up the river the ship started taking fire from host[ile] forces on the shore. The ship stopped and immediately turned back. [The Veteran] believed that although orders had been received, the U.S. ship was not supposed to be in that area[.]” Although there is not explicit corroboration for the above-described incident in the personnel and naval records associated with the claims file, the Board did find some support for the incident in the deck logs for the USS Fletcher. The Veteran’s personnel records confirm that he served aboard the USS Fletcher from August 1968 to May 1969. Deck logs from December 1968 show an incident where officers were sent ashore for intelligence briefings on two consecutive days, in Cam Ranh Bay and Nha Trang Harbor. The ship then slowly meandered around and north of Nha Trang for a day before suddenly and swiftly moving south along the Vietnamese coastline towards the Mekong River. Although the coordinates in the deck logs never place the USS Fletcher directly at the Mekong River, the Board notes that the coordinates do place the ship heading south in that direction at around 8pm and heading north away from that area when coordinates were recorded the next morning. Further, the deck logs show that the ship engaged with enemy forces on the shore in the early morning hours, before heading back north. In considering the Veteran’s statement, the friend’s letter, and the ship’s deck logs together, the Board finds that the evidence is at least in equipoise as to the question of whether the Veteran’s ship went on the Mekong River, and thus on inland waters while he was aboard. The Board therefore must resolve all reasonable doubt in favor of the Appellant on that issue. See 38 U.S.C. §§ 1154(b), 5107; 38 C.F.R. § 3.102. Therefore, the Veteran’s prostate cancer is presumed to have been incurred in service based on herbicide agent exposure. Accordingly, the Board finds service connection for the cause of the Veteran’s death is warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel