Citation Nr: 1808905 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 16-34 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from May 1951 to March 1961 and June 1961 to December 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2017. A transcript of that hearing is of record. 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). The issues of entitlement to service connection for a right ankle disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prostate cancer was not shown in service and the weight of the evidence is against a finding that his prostate cancer was related to or caused by his active naval service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a hearing before the Board in October 2017. While a VA examination was not provided in this case, the critical issue being decided is whether the Veteran should be presumed to have had exposure to herbicide agents while serving on a ship off the coast of Vietnam. There is no other suggestion that the Veteran's prostate cancer began while he was in service or was related to service except as a disability that is presumptively linked to exposure to herbicide agents. As such, an examination or medical opinion of record is not needed. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases, including prostate cancer, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran filed his service connection claims for prostate cancer in August 2011, which was denied by an August 2012 rating decision. He asserts that his prostate cancer is due to herbicide agent exposure. He reported that he served on a ship in the waters offshore Vietnam. Specifically, he asserted that he was stationed on the U.S.S. Camp and that he was in the same waters as other vessels that are entitled the presumption of herbicide agent exposure during missions to Vietnam. He asserts that he is entitled to service connection on a presumptive basis as he was exposed to herbicide agents during his naval service. The Veteran's service records show that he was stationed on the U.S.S. Camp from August 1961 to January 1966. The Defense Personnel Records Information Retrieval System (DPRIS) reported that the U.S.S. Camp entered many different waters during the Veteran's service. Specifically, the U.S.S. Camp anchored in An Thoi Harbor on different occasions. VA maintains a list entitled: "Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents," last updated on November 1, 2017 (ship list), which shows that as many as 15 other ships to which the herbicide exposure presumption has been extended were in An Thoi Harbor. It is also noted that the Veteran was found to be eligible for hostile fire pay during specific periods in September, October, and November 1965 based on the location of the U.S.S. Camp. However, the U.S.S. Camp is not listed on the ship list. After a review of the ship list, the 15 other ships were under two different classifications: a) ships that docked to the shore or pier in Vietnam and ships operating on Vietnam's close coastal waters for extended periods with evidence that crew members went ashore, and b) ships operating on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore. However, in either case, herbicide agent exposure was conceded for veterans that served aboard these ships if they provided a lay statement of personally going ashore. In the present case, at the October 2017 Board hearing, the Veteran specifically testified that he never went ashore. The record contains no competent evidence of herbicide agent exposure besides the Veteran's own lay statements. The Veteran has not submitted any competent medical evidence supporting his assertion of herbicide agent exposure. Moreover, a layperson's assertions indicating exposure to gases or chemicals during service are not considered to be sufficient evidence alone to establish actual exposure to a tactical herbicide agent. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). As such, the Veteran's assertions that he had exposure to herbicide agents during service, is insufficient to establish such exposure. The Board does not question the Veteran's assertion that he was aboard the U.S.S. Camp during missions around the coast of Vietnam, but the Board does not find credible evidence of brown water service, particularly in light of the service department findings regarding his ship. Accordingly, the Board finds the weight of the competent and credible evidence weighs against the Veteran's assertions of exposure to herbicides. Therefore, the herbicide presumption is not for application in this case. See 38 C.F.R. § 3.307(a)(6)(iii); VAOPGCPREC 27-97. Regarding direct service connection, there is no objective evidence of record that links the Veteran's current prostate cancer to his active service. STRs do not show a diagnosis of prostate cancer during his service. Furthermore, the Veteran had a normal separation examination in November 1970, which contained no evidence of prostate cancer. The first medical evidence contained in the claims file regarding prostate cancer is not until November 2010. As such, the Veteran's medical records show that he began treatment for prostate cancer four decades after his separation from service. The record contains no diagnosis of prostate cancer either in service or within one year after service, which would preclude service connection on the basis of continuity of symptomology or on any presumptive basis. The Veteran has not argued to the contrary. There is also no medical evidence linking the Veteran's current prostate cancer to his active service, and he has not submitted any medical opinion that even suggests a relationship between his prostate cancer and his active service. See Shedden, 381 F.3d 1163, 1167. Thus, there is no basis for service connection on a direct or presumptive basis. The criteria for service connection for prostate cancer have not been met, and the Veteran's claim is denied. ORDER Service connection for prostate cancer is denied. REMAND Regarding the Veteran's service connection claim for a right ankle disorder, his STRs show that he fractured his right ankle in August 1963. He complained of right ankle pain in August 1965. He experienced another right ankle injury in September 1965. In February 1968, he again complained of right ankle pain. In August 1968, he reported having trouble with his right ankle since he fractured it in August 1963. The Veteran was afforded a VA examination in March 2015. While the VA examiner opined that it was less likely than not that the Veteran's right ankle disorder was due to his active service, the examiner relied on the "typically marginal, (or absence), othopaedic entries" in the Veteran's STRs. However, STRs show multiple ankle injuries and ongoing complaints, which the VA examiner did not specifically discuss, and it is unclear whether the complaints were observed or considered. Therefore, an addendum is needed. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain a medical opinion to address the following question (If an opinion cannot be provided without an examination, one should be provided): Is it at least as likely as not (50 percent or better probability) that the Veteran's current right ankle disorder either began during or was otherwise caused by his military service, to include as a result of his right ankle fracture in service? Why or why not? In addressing these questions, the examiner should consider and discuss the numerous (at least 6) STRs showing the Veteran fractured his right ankle during service and voiced ongoing complaints of pain during his active service. The examiner should also review the Veteran's testimony at his Board hearing in October 2017 for information regarding his right ankle problems in-service and since service. 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs