Citation Nr: 1808970 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-18 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for coronary artery disease (CAD), to include as secondary to herbicide agent exposure. 2. Entitlement to service connection for prostate cancer, to include as secondary to herbicide agent exposure. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1961 to July 1966. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal was remanded by the Board in December 2015 for further development and is now ready for disposition. FINDINGS OF FACT 1. The competent evidence of record does not show that the Veteran's current CAD was noted during his active service, or that it is related to service, to include toxic herbicide exposure. 2. The competent evidence of record does not show that the Veteran's current prostate cancer was noted during his active service, or that it is related to service, to include toxic herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for current coronary artery disease have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for current prostate cancer have not been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained, or made all required attempts to obtain, the Veteran's VA treatment records, service treatment records, VA examination reports, military personnel records, and statements from the Veteran and his representative. Neither the Veteran nor any of his past representatives notified VA of any outstanding evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c) (2017). This appeal was remanded by the Board in December 2015 for further development. Specifically, additional records were obtained and associated with the Veteran's claims file. Further development was conducted to determine whether the Veteran was exposed to an herbicide agent, to include Agent Orange, while serving aboard USS INTREPID (CVS-11). Thus, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the Remand orders, and no further action is necessary in this regard. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran is seeking service connection for CAD and for prostate cancer, to include as secondary to Agent Orange exposure. Specifically, he appears to assert in his notice of disagreement that he flew missions to and from Cam Ranh Bay, often staying overnight. He asserts that he was in Vietnam at some point between February and May 1966, and that therefore the presumption of Agent Orange exposure applies to both of his claims. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014). Generally, the evidence must show: (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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, including prostate cancer, are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112 , 1113; 38 C.F.R. §§ 3.307 (a)(3) (2014), 3.309(a) (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology for diseases that qualify as a chronic disease listed in 38 C.F.R. § 3.309(a) (2017). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for diseases such as chloracne or other acneform diseases consistent with Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, B-cell leukemias, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, chloracne and respiratory cancers, and as potentially relevant here, ischemic heart disease and prostate cancer. 38 C.F.R. § 3.309(e) (2017). In April 2015, the United States Court of Appeals for Veterans Claims (Court) held that a fact-based assessment must be made regarding the probability of herbicide spraying even with regards to offshore areas not traditionally considered inland waterways. Gray v. McDonald, 27 Vet. App. 313 (2015). Following the decision in Gray, VA issued new guidelines which address what is considered an "inland waterway" of Vietnam. Presently, the criteria for inland waterways include "fresh water rivers, streams, and canals, and similar waterways." Because these waterways are distinct from ocean waters and related coastal features, service on these waterways qualifies as service in the Republic of Vietnam. VA considers inland waterways to end at their mouth or junction to other offshore water features. For rivers and other waterways ending on the coastline, the end of the inland waterway will be determined by drawing straight lines across the opening in the landmass leading to the open ocean or other offshore water feature, such as a bay or inlet. For the Mekong and other rivers with prominent deltas, the end of the inland waterway will be determined by drawing a straight line across each opening in the landmass leading to the open ocean. See The Adjudication Procedures Manual M21-1 (M21-1), Part IV.ii.1.H.2.a (June 23, 2017). Service in offshore waters does not confer a presumption of herbicide exposure. Offshore waters are 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. This includes salty and brackish waters situated between rivers and the open ocean. See M21-1, Part IV.ii.1.H.2.b (June 23, 2017). Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Vung Tau Harbor, Ganh Rai Bay, and as relevant here, Cam Ranh Bay Harbor, are explicitly considered to be offshore waters. See M21-1, Part IV.ii.1.H.2.c (June 23, 2017). In this case, after reviewing all evidence currently of record, the Board determines that service connection for CAD and for prostate cancer is not warranted. While the Veteran's medical records, including a March 2017 cardiology consult, document active CAD and prostate cancer, the evidence does not show that the Veteran's conditions are related to or had their onset during his service or within a year after separation, or that it they are related to toxic herbicide exposure. First, the Veteran's diseases cannot be attributed to herbicide agent exposure on a presumptive basis. While the Veteran served during the period from 1962 to 1975, and while CAD and prostate cancer are disorders that may be presumed related to toxic herbicide agent exposure under §3.309, the Veteran's service did not include service in Vietnam, per 38 C.F.R. § 3.307(a)(6)(iii). The Veteran contends that he served on USS FORRESTAL and USS INTREPID, and that he was responsible for flying into Cam Ranh Bay Airbase to pick up and deliver movies and films. He clarified in a September 2013 statement that he traveled from USS INTREPID to Cam Ranh Bay and Yankee Station in Saigon from approximately February 1966 to July 1966 to return and distribute movies and films. However, responses from the National Personnel Records Center (NPRC) and the Joint Services Records Research Center (JSRRC) dated October 2010 and March 2014 respectively, did not indicate that USS INTREPID personnel stepped foot in Vietnam during the period from approximately May to July 1966. Pursuant to the Remand order, additional medical records and clarification from JSRRC were sought as to the Veteran's service during February and March 1966. Per a March 2017 administrative decision, JSRRC was unable to corroborate the Veteran's exposure to Agent Orange at any time during his service, to include February and March 1966. Moreover, Cam Ranh Bay is specifically mentioned in the Adjudication Procedures Manual M21-1 as located on the offshore waters of Vietnam, and therefore does not qualify as service in Vietnam. Accordingly, the Veteran cannot be presumed to have served in Vietnam. Next, although though his primary assertions have been addressed above, the Veteran is not precluded from establishing service connection with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted on this basis. Specifically, the Veteran's service treatment records show no treatment for or symptoms of CAD or prostate cancer in service, or at his separation exam in July 1966, or within the presumptive one-year period after separation. In fact, the post-service evidence does not reflect symptoms related to the Veteran's claims on appeal until several years after service. Specifically, according to a March 2012 record, the Veteran's CAD was not diagnosed until 1996, after a quadruple bypass in 1995. Further, his prostate cancer was not diagnosed until April 2009, according to his December 2010 VA examiner. Moreover, the Veteran has never truly asserted that such symptoms have existed since service. Therefore, based on the clinical evidence of record, service connection cannot be established through continuity of symptomatology or the Veteran's statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Despite the lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between his current disorder and his active duty service. However, there is no medical nexus between the Veteran's active duty and current diagnoses. A December 2010 VA examination noted diagnoses of CAD and prostate cancer. The examiner did not directly address the etiologies of the Veteran's CAD or his prostate cancer. However, in light of the finding that the Veteran was not exposed to Agent Orange in service, and because there is no other indication in the record that the Veteran's prostate cancer or his CAD is caused by or related to active service, this exam was adequate. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical and substantive evidence of record does not show that it is as likely as not that the Veteran's current disorders are related to service, to include alleged Agent Orange exposure. In arriving at these conclusions, the Board recognizes the statements of the Veteran relating his CAD and prostate cancer to his service at Cam Ranh Bay. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of heart disease, or of prostate or any other similar cancer. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. In addition, a qualified medical opinion is required to link the Veteran's current symptoms to his time in service, especially when it relates to a cancer with a multifactorial etiology. In this case, a qualified medical professional did not make such a finding. Therefore, the lay statements of belief that the Veteran's CAD or his prostate cancer is related to his time in service, especially the use of Agent Orange in Vietnam, are found to lack competency. Unfortunately, based on the evidence of record, the Veteran's claim must be denied. ORDER Service connection for coronary artery disease, to include as secondary to toxic herbicide agent exposure, is denied. Service connection for prostate cancer, to include as secondary to toxic herbicide agent exposure, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs