Citation Nr: 19132156 Decision Date: 04/25/19 Archive Date: 04/24/19 DOCKET NO. 17-22 115A DATE: April 25, 2019 ORDER Entitlement to service connection for lung cancer due to Agent Orange exposure is granted. Entitlement to service connection for prostate cancer due to Agent Orange exposure is granted. Entitlement to service connection for erectile dysfunction (ED), secondary to prostate cancer on a causation basis, is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran served in the 12 nautical mile territorial sea of the Republic of Vietnam. 2. The Veteran has current diagnoses of lung cancer and prostate cancer. 3. The Veteran’s ED is caused by his now service-connected prostate cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for lung cancer due to Agent Orange exposure are met. 38 U.S.C. §§ 1110, 1113, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 2. The criteria for service connection for prostate cancer due to exposure to Agent Orange are met. 38 U.S.C. §§ 1110, 1113, 1116, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 3. The criteria for service connection for ED, secondary to prostate cancer on a causation basis, are met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from August 1972 to July 1978, including service in Vietnam. The Veteran also served on active duty in the Army from October 2004 to January 2006, including service in Iraq. This case comes to the Board of Veterans’ Appeals (Board) from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for lung cancer, prostate cancer and ED. In June 2016, the Veteran filed a notice of disagreement (NOD). The RO issued the Veteran a statement of the case (SOC) in March 2017 and, in May 2017, the Veteran filed a timely substantive appeal (via VA Form 9). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). In addition, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including prostate cancer and lung cancer, are presumptively service-connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service connection may also be established on a secondary basis 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). Lung Cancer and Prostate Cancer The Veteran contends that his lung cancer and prostate cancer are the result of his exposure to Agent Orange while serving in Vietnam. The evidence of record shows that the Veteran has current diagnoses of lung cancer and prostate cancer. The January 2015 VA examiner reported a November 2013 diagnosis of benign or malignant neoplasm or metastases of respiratory system, subsequently characterized as lung cancer. The January 2015 VA examiner also reported a July 2013 diagnosis of adenocarcinoma of the prostate. Thus, the Veteran has lung cancer and prostate cancer and the current disability element is established for both claims. The dispositive issue is thus whether the Veteran served in Vietnam. According to military personnel records, the Veteran served in the Navy aboard the U.S.S. Meyerkord, which was deployed during Operation Frequent Wind during the evacuation of American troops from Saigon on April 29, 1975 and April 30, 1975. The Veteran’s personnel records also show that he was aboard the USS Meyerkord from March 1975 through August 1975 and his DD Form 214 shows that he is a recipient of the Armed Forces Expeditionary Medal, further confirming that he was aboard the USS Meyerkord during Operation Frequent Wind. Additionally, deck logs and lay evidence show that the USS Meyerkord docked in DaNang Harbor in January 1973, evidence that the ship was capable of and did sail into the official waters of the Republic of Vietnam. Finally in this regard, in his June 2016 NOD, the Veteran noted that during the evacuation of Vietnam, the ship was located in the coastal waters of South Vietnam near DaNang, which is consistent with the facts of Operation Frequent Wind and the circumstances of his service aboard the USS Meyerkord. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). In a recent decision, the Federal Circuit has stated that Veterans are entitled to 38 U.S.C. § 1116 presumptions if they served within the 12 nautical miles of the Republic of Vietnam. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (“Congress has spoken directly to the question of whether those who served in the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ are entitled to § 1116’s presumption if they meet the section’s other requirements. They are”). Based on the above evidence, the Board finds that the Veteran served in Vietnam as that term was defined by the Federal Circuit in Procopio, specifically, within the 12 nautical mile territorial sea of the ‘Republic of Vietnam’ VA’s General Counsel has indicated that some cases before the Board that were affected by the Procopio stay may be capable of immediate decision, for example if the evidence indicates that the Veteran served on board a ship that went within the 12 nautical mile territorial sea of Vietnam. General Counsel Advisory Opinion, VAOPGADVIS 1-19 (Mar. 29, 2019). For the above reasons, this is such case. See also 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”). As the Veteran has current lung cancer and prostate cancer and he is presumed to have been exposed to Agent Orange in Vietnam, service connection for lung cancer and prostate cancer is warranted on a presumptive basis. Erectile Dysfunction The Veteran also contends that his ED is the result of his exposure to Agent Orange. As noted above, VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, but the list does not include ED. Thus, ED cannot be service connected on a presumptive basis under § 3.309(e). This does not, however, mean the Veteran cannot achieve service connection through an alternative theory of entitlement. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Here, service connection for ED as secondary to his now service-connected prostate cancer is raised by the record, specifically the January 2015 VA examination. As noted above, service connection may be established on a secondary basis 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). the January 2015 VA examiner diagnosed the Veteran with ED, thus satisfying the current disability requirement. Furthermore, prostate cancer is now service connected. Thus, the dispositive issue is whether the Veteran’s ED is proximately due to or the result of his service-connected prostate cancer. In that regard, the January 2013 VA examiner provided a positive medical opinion concluding the Veteran’s ED is at least as likely as not attributable to his now service connected prostate cancer (characterized as adenocarcinoma of the prostate in the VA examination). While the examiner did not provide a thorough rationale to accompany her opinion, an examiner need not explicitly lay out their journey from the facts to a conclusion in order for an opinion to be considered probative. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate). Reading the examiner’s opinion as a whole and in context of the evidence of record and her examination of the Veteran, her conclusion that the Veteran’s ED is more likely than not attributable his prostate cancer is entitled to substantial probative weight. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The above evidence reflects that there is a competent, probative medical opinion that weighs in favor of service connection for the Veteran’s ED secondary to his prostate cancer, and no evidence against. The preponderance of the evidence is therefore in support of the claim for entitlement to service connection for ED secondary to service-connected prostate cancer, on a causation basis, and the claim must be granted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD JR Cummings, Associate Counsel