Citation Nr: 1815646 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-38 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for prostate cancer to include as a result of herbicide agent exposure. 2. Entitlement to service connection for diabetes mellitus II to include as a result of herbicide agent exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to June 1974 in the United States Navy. He received the Republic of Vietnam Campaign Medal, Combat Action Ribbon, and a Vietnam Service Medal for his service in the Vietnam War Era. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, CA. In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a travel Board conference hearing. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran served aboard the Richard S. Edwards during the Vietnam War Era; however, he did not set foot on land or travel along inland waterways, known as "brown water," within the Republic of Vietnam during service; therefore, herbicide agent exposure can not be presumed. 2. Prostate cancer was not shown in service, or within the one-year presumptive period, and the weight of the evidence is against a finding that the Veteran's current prostate cancer is etiologically related to such service. 3. Diabetes mellitus II was not shown in service, or within the one-year presumptive period, and the weight of the evidence is against a finding that the Veteran's current diabetes mellitus II is etiologically related to such service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for diabetes mellitus II have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection A. Direct Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. B. Presumptive Service Connection for Chronic Diseases Service connection for diabetes may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307 (a)(3) (2017). If the chronic disease manifested in service or within the presumptive period, then service connection will be established for subsequent manifestations of the same chronic disease at any date after service, no matter how remote, without having to show a causal relationship or medical nexus, unless the later manifestations are clearly due to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that § 3.303(b) only applies to the chronic diseases listed in § 3.309(a)). When the condition noted during service is not shown to be chronic, or its chronicity may be legitimately questioned, then a continuity of symptoms after service must be shown to establish service connection under this provision. Id. at 1338-39 (observing that a continuity of symptoms after service is a relaxed evidentiary showing that itself "establishes the link, or nexus" to service and also confirms the existence of the chronic disease while in service or during a presumptive period). To establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition "noted" during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). The Veteran has not argued that he is entitled to service connection for prostate cancer and/or diabetes on a direct basis or that entitlement to service connection for his diabetes be considered on a presumptive basis for chronic diseases. The Board notes that VA is obligated to develop and consider all theories of entitlement that are raised by the record or by the claimant. See Robinson v. Mansfield, 21 Vet. App. 545 (2008). In the present case, the Veteran currently suffers from both prostate cancer and diabetes. As such, the Board will address service connection on a direct and presumptive basis. Prostate cancer With respect to the first element (1) for service connection, a current disability, the Veteran has a current diagnosis of prostate cancer. The Veteran's VA treatment records reveal that he was diagnosed with prostate cancer in 2011, confirmed by an elevated prostate-specific antigen measurement of 11.58. He continues to receive follow-up care for the disability. With respect to element (2), in-service incurrence or aggravation of a disease or injury, service treatment records and post-service records do not show that the Veteran had prostate cancer in service or within the one year presumptive period. Review of the Veteran's service treatment records are absent for any diagnosis of treatment for prostate cancer. Without a manifestation of prostate cancer in-service or within the presumptive period, service connection on a direct basis is not warranted. Diabetes mellitus II With respect to the first element (1) for service connection, a current disability, the Veteran has a current diagnosis of diabetes mellitus II. The Veteran's VA treatment records from 2007 to 2013 indicate that he receives treatment for diabetes. He testified that he was first diagnosed with diabetes in 1999. See August 2017 Transcript. He continues to receive follow-up care for the disability, which includes blood sugar monitoring and maintenance using insulin. With respect to element (2), in-service incurrence or aggravation of a disease or injury, service treatment records and post-service records do not show that the Veteran had diabetes in service or within the one year presumptive period. Review of the Veteran's service treatment records are absent for any diagnosis of treatment for diabetes. Without a manifestation of diabetes in-service or within the presumptive period, service connection on a direct basis is not warranted. Presumptive service connection for diabetes as a "chronic disease" is also not warranted as there is no documentation of diabetes from within one year of the Veteran's separation from active duty. As for a continuity of symptomatology between the disorder and service, diabetes was not noted during service and treatment for diabetes did not commence until 25 years after separation. Therefore, 38 C.F.R. § 3.303(b) (2017) is not applicable. See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). C. Presumptive Service Connection Associated with Exposure to Certain Herbicide Agents. The law also provides that the Veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. If the Veteran was exposed to an herbicide agent during service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there was 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. The Veteran contends that he developed prostate cancer and diabetes as a result of being exposed to Agent Orange during his service aboard the U.S.S. Richard S. Edwards. He supplied a correspondence endorsing that he participated in close coastal gun support missions and helped supply boats during operation Linebacker near Quang Tri. He noted that his vessel also travelled to Haiphong Harbor, Da Nang Harbor, and other coastal gun sites. During a hearing before the Board, he testified that his ship travelled in the Mekong Delta in 1969 and was exposed to herbicide agents during that time. When he first boarded the ship in 1970 while docked in California, he was tasked with cleaning the ship. He noted that his eyes burned as he cleaned the fresh water tanks aboard the ship. He noted that while aboard the U.S.S. Richard S. Edwards, he travelled to Da Nang Harbor, which he stated was surrounded by three sides and had poor water drainage. He contends that he may have been exposed to herbicide agents as "that stuff washes down into those deltas and then it runs right down into the mouth of the harbor." See August 2017 Transcript. He acknowledged drinking the water from the harbor. The Veteran supplied a Da Nang Harbor Report which indicated a high likelihood that ports, bays, and harbors in the Republic of Vietnam, including Da Nang Harbor, became a collection point for the residuals of herbicide agents via rivers and streams into the sea. The Veteran also supplied an opinion by Dr. WD, an environmental scientist, that it is at least as likely as not that the Veteran was exposed to herbicide agents as a result of ingestion, absorption, and inhalation of food and water contaminated with herbicide agents while in the Da Nang Harbor. Herbicide exposure The evidence shows that the U.S.S. Richard S. Edwards traveled into the inland waters of the Republic of Vietnam between February 28, 1969 to March 1, 1969; however, this instance preceded the time in which the Veteran was aboard the Navy destroyer. While the U.S.S. Richard S. Edwards was in the official waters off the coast of Vietnam during the Veteran's service, which is considered blue water; however, there is no record of the Navy destroyer travelling within the inland waters, considered brown water, inside the country during such time. While the Board has considered the Veteran's statements regarding his travel into the harbors within the Republic of Vietnam, review of the quartermaster's notes, ship histories, and other sources reveals no evidence that the U.S.S. Richard S. Edwards traveled within the inland waters of the Republic of Vietnam. Further, the April 2013 VA memo cited that there are no studies showing harmful effects for any secondary or remote herbicide exposure. The Board acknowledges the probative value of the Da Nang Harbor report and Dr. WD's etiology opinion; however, the Department of Veterans Affairs has specifically characterized blue-water zones, including harbors and coastal waterways off the shore of Vietnam, as areas not entitled to a presumption for herbicide exposure. As such, exposure to herbicide agents has not been established; therefore, presumptive service connection for prostate cancer as per C.F.R. § 3.309(e) is not warranted. ORDER Service connection for prostate cancer to include as a result of herbicide agent exposure is denied. Service connection for diabetes mellitus II to include as a result of herbicide agent exposure is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs