Citation Nr: 18153697 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-47 738 DATE: November 28, 2018 ORDER Entitlement to service connection for prostate cancer status post radical prostatectomy and sling procedure with chronic residual incontinence due to herbicide exposure (prostate cancer) is granted. FINDING OF FACT 1. Resolving all doubt in the Veteran’s favor, he is shown by competent, credible and persuasive evidence to have been exposed to herbicide agents in service. 2. The Veteran’s prostate cancer is related to his herbicide agent exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer due to herbicide agent exposure have been met. 38 U.S.C. §§ 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1967 to July 1971, with service aboard the USS Great Sitkin (AE-17) (hereinafter “Sitkin”) from December 1967 to November 1969. Entitlement to service connection for prostate cancer due to herbicide exposure The Veteran seeks service connection for prostate cancer, claimed as due to herbicide agent exposure. Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, may be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307(d), 3.309(e). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, 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)(iii). 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(d)(6)(i). Medical records reflect that the Veteran was diagnosed with prostate cancer in 2010, and that he underwent a prostatectomy, with subsequent residuals. Thus, the first element for establishing service connection, a current disability, has been met. The question becomes whether the condition is related to service. Service treatment records are negative for prostate or urinary abnormalities. In a March 2011 response, the National Personnel Records Center stated that there were no records showing that the Veteran was exposed to herbicide agents. In a May 2011 Notice of Disagreement, the Veteran contends that he had served upon the Sitkin and that it anchored in Cam Ranh Bay in July 1968. The Veteran submitted deck logs from the Sitkin that show the Sitkin anchored in Cam Ranh Bay in July 1968. The Board finds that the evidence of record clearly establishes that the Veteran had active service on the Sitkin and that the Sitkin anchored in Cam Ranh Bay. Here, the Veteran specifically contends that he left the Sitkin while it was docked. He contends that he made a one-day trip to Cam Ranh Bay to offload munitions where he was on land and stayed overnight. The Board finds that the Veteran’s statements are competent and credible, and there is no directly contradictory evidence. Viewing the evidence of record in a light most favorable to the Veteran, the Board finds that the Veteran set foot on the landmass of the Republic of Vietnam and was therefore presumed to have been exposed to herbicide agents. The Veteran’s prostate cancer is presumed to be associated with his in-service herbicide exposure. See 38 C.F.R. § 3.309(e). As a result, the Board finds that the evidence supports a grant of service connection for prostate cancer on a presumptive basis. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Fowler, Associate Counsel