Citation Nr: 1808362 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-08 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to Agent Orange exposure. 2. Entitlement to service connection for prostate cancer, claimed as due to Agent Orange exposure. 3. Entitlement to service connection for a heart condition as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Allen M. Kerpan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran served on a ship offshore of Vietnam 1966; the evidence of record does not show that the Veteran had service on the landmass or inland waterways of Vietnam. 2. The preponderance of the evidence is against a finding that the Veteran's prostate cancer had its onset in service, manifested within one year of separation from active duty, or is otherwise related to his active military service. 3. The preponderance of the evidence is against a finding that the Veteran's diabetes mellitus, had its onset in service, manifested within one year of separation from active duty, or is otherwise related to his active military service. 4. The preponderance of the evidence is against a finding that the Veteran's heart condition had its onset in service, manifested within one year of separation from active duty, or is otherwise related to his active military service, to include as secondary 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. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C §§ 1101, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for service connection for a heart condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In the case at hand, the requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in correspondence dated in July 2009 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability evaluations and effective dates are assigned. VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate his claim. Currently, there is no evidence that additional records have yet to be requested, or that a VA examination is in order. Moreover, there is no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. The Board recognizes that the Veteran has not been afforded VA examinations in this case. However, no examinations are necessary to decide these claims. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. In this case, no examination is necessary in order to adjudicate the claims because there is no evidence to satisfy the McLendon criteria discussed above. While the record does reflect a diagnosis of current disabilities, there is no credible evidence of an in-service disease or injury or evidence suggesting that these conditions may somehow be related to military service. Therefore, a medical examination would serve no useful purpose in this case, since the requirement of an in-service disease or injury to establish a service connection claim cannot be met upon additional examination. The Veteran was not prejudiced by the lack of VA examination. Prostate Cancer and Diabetes Mellitus The Veteran contends that he should be entitled to service connection for prostate cancer and diabetes mellitus because he is a Vietnam Veteran who served off the coast of Vietnam on the USS Porterfield, (DD-682) and therefore the presumptions for herbicide exposure should apply to his claims. The Veteran's arguments include entitlement to presumptive exposure to herbicide agents based on offloading of personnel from the ship, gunnery missions in support of ground troops, and the transfer of contaminated drinking water to the ship. However, in February the Veteran reported to the RO that while onboard the Porterfield, he did not go ashore during the periods that the ship was along the coastal waters of Vietnam. See February 2014 VA Form 21-0820. Generally, service connection may be established for 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). In order to establish service connection, the following must be shown: (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). Under 38 C.F.R. § 3.303(b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as "chronic." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). Prostate cancer and diabetes mellitus are "chronic" diseases for VA purposes. 38 U.S.C. § 1101. Chronic diseases that become manifest to a degree of 10 percent within one year of termination of active duty may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; those diseases include prostate cancer and diabetes mellitus. 38 C.F.R. § 3.309 (e). The provisions for presumptive service connection, however, do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstance of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 30 U.S.C. § 1154(a) (2012). The Board has thoroughly reviewed all evidence in the Veteran's claims file to include his entire service treatment record. The term "service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations only if the conditions of service involved "duty or visitation" to the landmass of Vietnam. 38 U.S.C. § 1116(a)(3) (2012); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2017). The Federal Circuit, in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waterways of Vietnam in order to benefit from the regulation's presumption. There is evidence of record showing that the Veteran served aboard a ship that operated off the coast of Vietnam in 1966. The Veteran's personnel records show that he served on the USS Porterfield from November 1964 to May 1966. See December 2009 Enlisted Performance Reports. Deck logs for the USS Porterfield confirm that the Veteran's ship was in the waters of Vietnam in early 1966. November 2010 Deck Logs. Deck logs show that the USS Porterfield travelled in and around DaNang harbor and serviced gunnery targets from South Vietnam while the Veteran was onboard. Id. The Veteran has also submitted a June 2017 letter from a shipmate who served concurrently with the Veteran on the USS Porterfield. July 2017 Buddy Statement. The Board therefore concedes that the Veteran did serve on the USS Porterfield, which conducted operations off the coast of South Vietnam in April and May of 1966 and, that it did dock in Da Nang and took on supplies during the same time period. The evidence does not show, however, that the Veteran left the ship at that time. When specifically asked by the RO whether or not he personally went ashore, the Veteran indicated that he did not go ashore during the periods the ship was along the coastal waters of Vietnam. See February 2014 VA Form 21-0820. He stated that his duties required him to assist with offloading material from the landing craft as the landing craft returned from going ashore. The Veteran did not describe any duties assigned to him that would have required getting off of his ship. Military treatment records from the Veteran's Naval reserve service indicate good to excellent health with no manifestation of prostate cancer or diabetes mellitus from his induction physical examination through a December 1981 service report of medical history. See May 2009 Service Treatment Record. Private medical records first reported prostate cancer in May 2004. Those records indicate that a biopsy in May 2004 revealed staged prostate cancer with a PSA reading of 63.8. See April 2009, Dr. S.K.A. letter to VA. The same report indicated that he underwent a radical retropubic prostatectomy with bilateral lymph node dissection in August of 2004. Id. Since that time the Veteran has been monitored for progression of the cancer. See March 2014 VA Form 9. The Veteran's diabetes mellitus was reported as an active problem in July 2008, See August 2009 Private Medical Progress Note. Accordingly, the Board concedes that the Veteran has current disabilities in the area of prostate cancer and diabetes mellitus. As to both disabilities, the in-service issue on appeal therefore hinges on the question of whether a presumption of herbicide exposure may be granted for service onboard a ship operating off of the coast of South Vietnam. In order for the presumption of herbicide exposure to apply, qualifying service in the Republic of Vietnam includes service on the inland waterways, but does not include mere service on a deep-water naval vessel in the waters offshore under 38 C.F.R. § 3.307(a)(6)(iii). See Haas, 525 F.3d at 1187-1190. The Board acknowledges that in Gray v. McDonald, 27 Vet. App. 313 (2015), the United States Court of Appeals for Veterans Claims found that VA relied on insufficient evidence to designate Da Nang Harbor as an offshore, rather than an inland, waterway. Gray, 27 Vet. App. at 325. The Court vacated that decision to allow VA to reevaluate its definition of inland waterways, including how that definition applies to Da Nang Harbor. Id. at 327. Since that decision, however, VA has undertaken a review of the classification of Vietnam-area harbors, and there has been no newly discovered evidence or determination that would alter VA's established position that Da Nang Harbor is not an inland waterway for VA purposes. "Inland waterways" are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1, pt. IV, subpt. ii, ch. 1, § H.2.a; see also VA Adjudication Procedure Manual M21-1, pt. IV, subpt. ii, ch. 2, § C.3.m. This distinction was established because aerial spraying of Agent Orange occurred within the land boundaries of Vietnam, thus affecting the inland waterways. Agent Orange was not sprayed on offshore waters, and thus there is no presumption of exposure for service on the offshore open waters. Id. The coastline, which has generally been considered to run continuously across the mouth of a river, including river delta areas to the extent it is discernible, has been established as the dividing line separating inland waterways from offshore coastal waters. Evidence that a vessel was in the mouth of a river or in the area of a river delta is sufficient for VA to accept inland waterway entry, but open water harbors along the coastline are considered part of the South China Sea and not inland waterways. While VA has identified certain bays and harbors that may qualify as inland waterways, Da Nang Harbor is not among those waterways, as it offers wide open access to ocean-going ships, with a deep water channel that is contiguous with the South China Sea, and there is no historical evidence of extensive Agent Orange aerial spraying in the Da Nang area, so the potential for Agent Orange exposure was minimal. See VA Adjudication Procedure Manual M21-1, pt. IV, subpt. ii, ch. 2, § C.3.m. In sum, it is official VA policy that service in Da Nang Harbor, in and of itself, does not constitute service in the inland waters of Vietnam for purposes of applying the presumptive provisions of 38 C.F.R. § 3.307 , 3.309(e). As already noted, the Veteran has based his claim entirely upon presumptive herbicide exposure during ship operations in and around Da Nang Harbor. No other basis for relating the etiology of the claimed disability to service is demonstrated by the evidence of record. That is, the Veteran has not indicated that his prostate cancer or diabetes mellitus was otherwise caused or aggravated by an in-service disease or injury, nor is such indicated by the evidence of record to include the service treatment records. After consideration of the facts with regard to presumptive exposure, the Board finds that absent a showing of the Veteran's presence at some point on the landmass of Vietnam, a finding of presumptive exposure to an herbicide agent with respect to the claims for prostate cancer and diabetes mellitus is unwarranted. While prostate cancer and diabetes mellitus are considered chronic conditions, there is also no evidence that the Veteran's prostate cancer or diabetes mellitus was incurred in service or manifested any symptoms in service or within one year of separation from service. See 38 U.S.C. § 1101; 38 C.F.R. §§ 3.303(b), 3.309(a); Walker, 708 F.3d 1331. The Veteran's treatment records first indicate evidence of prostate cancer in approximately 2004 and diabetes mellitus in approximately 2008, which would be 38 years and 42 years respectively after his separation from active duty. It must be concluded based on the evidence that the Veteran's prostate cancer and diabetes mellitus did not become manifest to a compensable degree within a year after his discharge from such active duty service. 38 C.F.R. §§ 3.307, 3.309; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As such presumptive service connection based, on chronicity, for these two claims is not supported by the record. As to direct service connection, there is no competent medical evidence of record that establishes a causal connection between the Veteran's prostate cancer and diabetes mellitus disorder and his military service, or claimed Agent Orange or other herbicide exposure. See Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). This evidentiary deficiency concerning the nexus element is fatal to the claims. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). None of the medical evidence of record includes any indication that the Veteran's prostate cancer or diabetes mellitus can be connected to service in any way. Thus, there is no competent and credible evidence relating the Veteran's prostate cancer or diabetes mellitus to any event or injury in his military service. Absent any showing of the critical service connection element of nexus, any claim for direct service connection of prostate cancer or diabetes mellitus must similarly fail. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran's prostate cancer and diabetes mellitus were incurred in or otherwise the result of his active service, to include as due to herbicide exposure. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Heart Condition The Veteran contends that he should be service connected for a heart condition secondary to his diabetes mellitus. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation of a disability by a service-connected disability. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). As to the Veteran's heart condition, the Veteran received cardiac stents in January 1999 and May 2002. See August 2009 Medical Treatment Record at 1. The Veteran's service treatment records also show that he was diagnosed with hypertension in November 1993 approximately 33 years after separation from active duty. See August 2014 Service Treatment Record at 63. Stress testing in 2004 and 2005 showed no anomalies and no ischemia. July 2008 Medical Treatment Record. Additionally, the Veteran has not asserted that he had hypertension or any other heart condition at any time during his active service or that this condition is in any way related to an in service event or injury. The evidence therefore shows that the Veteran had a diagnosis of hypertension in 1993 but no earlier manifestations of the condition. Notwithstanding the previous diagnosis for the Veteran's heart condition, service connection on a secondary basis cannot be granted, as the Veteran is not service connected for diabetes mellitus. Because entitlement to service connection has been denied for the primary condition, any claim of entitlement to service connection on a secondary basis is moot, as a matter of law. 38 C.F.R. § 3.310. In light of the evidence of record the Board finds that the weight of the evidence is against a finding that the Veteran's hypertension had its onset during service or within one year of separation from service, or that it is related to any event in service or to any service-connected disability. The Board has again considered the benefit of the doubt doctrine, but as the preponderance of the evidence is against the claim, and the claim is moot as a matter of law, this doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for prostate cancer claimed as due to Agent Orange exposure is denied. Entitlement to service connection for diabetes mellitus claimed as due to Agent Orange exposure, is denied. Entitlement to service connection for a heart condition as secondary to diabetes mellitus, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs