Citation Nr: 20002000 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-40 496 DATE: January 9, 2020 ORDER Entitlement to service connection for prostate cancer and its residuals is granted. Entitlement to service connection for erectile dysfunction, secondary to prostate cancer on a causation basis, is granted. Entitlement to service connection for voiding dysfunction, 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 Republic of Vietnam during the Vietnam War era. 2. The Veteran has been diagnosed with prostate cancer. 3. The Veteran’s erectile dysfunction is caused by his prostate cancer. 4. The Veteran’s voiding dysfunction is caused by his prostate cancer. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for prostate cancer and its residuals are met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for erectile dysfunction, as secondary to prostate cancer on a causation basis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for voiding dysfunction, as secondary to prostate cancer on a causation basis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1960 to January 1988. These matters initially came before the Board of Veterans’ Appeals (Board) from a December 2014 rating decision. In September 2017, the Board denied an application to reopen the claim of service connection for prostate cancer and denied entitlement to service connection for erectile dysfunction and nocturia (both to include as secondary to prostate cancer). The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court issued a Memorandum Decision in which it set aside the Board’s September 2017 decision, in part, and remanded the issues of entitlement to service connection for prostate cancer, erectile dysfunction, and nocturia to the Board for further proceedings consistent with the Memorandum Decision. As for characterization of the issues on appeal, the Board acknowledges that the agency of original jurisdiction (AOJ) denied the Veteran’s claims of service connection for prostate disability (characterized as prostatitis and prostate cancer) and erectile dysfunction in September 1988, May 2009, and August 2014 rating decisions on the basis that the claimed disabilities were not related to service. With respect to prostate cancer specifically, the AOJ also found that the Veteran was not presumed to have been exposed to herbicide agents in service. The Veteran was notified of the September 1988, May 2009, and August 2014 decisions, he did not appeal any of the decisions within one year of their issuance, and new and material evidence was not received within those years. Under such circumstances, new and material evidence would generally be required to reopen the claims of service connection for prostate disability and erectile dysfunction. However, after the final September 1988, May 2009, and August 2014 rating decisions, the President signed into law the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act), which extends the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWN Act codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), which was that “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”). See VAOPGCPREC 3-2019 (Dec. 13, 2019), at 2 (“The BWN Act codified the Procopio holding”). Moreover, Congress also intended the BWN Act to “ensure that VA defines ‘the Republic of Vietnam’ broadly.” Id. at 12 (citing H.R. Rep.116-58, at 11 (May 10, 2019)). In addition, the BWN Act provides for special effective date rules with regard to claims, such as the current claim of service connection for prostate cancer, where service connection is sought for diseases presumed service-connected in veterans exposed to Agent Orange that were denied based on lack of service in Vietnam and are now being granted based on such service. See 38 U.S.C. § 1116A(c)(2). Those rules indicate that such a claim should be addressed on a de novo basis rather than as an application to reopen. In this case, the Court set aside the Board’s September 2017 decision based on the Federal Circuit’s decision in Procopio and the Veteran’s contentions that he was exposed to herbicide agents while serving in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. Moreover, he contends that his prostate cancer was caused by his exposure to herbicide agents and that his erectile dysfunction and voiding dysfunction are caused by his prostate cancer. Therefore, the Board will address all claims on appeal on a de novo basis. Lastly, the claim of service connection for nocturia has been re-characterized as a claim of service connection for voiding dysfunction to take account of all currently diagnosed voiding dysfunctions (including nocturia and urine leakage). See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Service Connection 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, 1131; 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). A veteran, who, during active military service, served in the Republic of Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service “in the Republic of Vietnam” includes service both on the landmass of Vietnam and the waters that are no more than 12 miles offshore of Vietnam. 38 U.S.C. § 1116A(a). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain diseases, including prostate cancer, are presumptively service-connected. 38 C.F.R. § 3.309 (e). Service connection is also warranted for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). 1. Entitlement to service connection for prostate cancer and its residuals The Veteran contends that he has current prostate cancer that was caused by exposure to herbicide agents in Vietnam. Specifically, he contends, in pertinent part, that he was exposed to herbicide agents when he temporarily went ashore in Vietnam while serving aboard the USS Kitty Hawk off the coast of Vietnam during the Vietnam War. For the following reasons, the Board finds that the Veteran is presumed to have been exposed to herbicide agents (including Agent Orange) during service and that he has a current diagnosis of prostate cancer that is presumptively service-connected. Medical records, including an October 2008 examination report from Sharp HealthCare and a September 2014 examination report from Sharp Rees-Stealy Medical Group (Sharp), indicate that the Veteran was diagnosed as having prostate cancer in 2008, was treated with Lupron injections and proton therapy, and has continued to experience residuals of the cancer and its treatment (as discussed below in the section pertaining to his claimed erectile dysfunction and voiding dysfunction). The Veteran has thus met the current disability requirement. The Veteran contends, in pertinent part, that he was exposed to herbicide agents (including Agent Orange) when he temporarily set foot in Vietnam while he was serving aboard the USS Kitty Hawk. Specifically, he and his representative have reported that while the USS Kitty Hawk was operating off the coast of Vietnam, the Veteran temporarily went ashore in Vietnam to perform aircraft maintenance (see an October 2008 “Statement in Support of Claim” form (VA Form 21-4138) and an October 2019 statement from the Veteran’s representative). Service personnel records reflect that the Veteran served aboard the USS Kitty Hawk as part of the Reconnaissance Attack Squadron Six (RVAH 6) from March 1971 to April 1972. His DD Form 214 for the period of service from February 1970 to November 1973 reflects that he received the Vietnam Service Medal with 2 Stars and that his military occupational specialty was an aviation mechanic. Moreover, information received from the National Personnel Records Center in July 2009 confirms that the USS Kitty Hawk was in the official waters of the Republic of Vietnam for various periods between March 1971 and April 1972. The Veteran is competent to report setting foot in Vietnam during the Vietnam War era. Also, there is no affirmative evidence to explicitly contradict his reports of having temporarily gone ashore in Vietnam while serving aboard the USS Kitty Hawk and his reports are consistent with the places, types, and circumstances of his service. See 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 record). Moreover, the Board must consider the Veteran’s statements along with the other evidence of record in determining whether he set foot in Vietnam. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). Overall, the Board finds that the Veteran’s reports of setting foot in Vietnam during the Vietnam War Era are credible and the evidence is at least evenly balanced as to whether he set foot in Vietnam. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, exposure to herbicide agents in service is conceded on a presumptive basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Veteran has current residuals of prostate cancer and he is presumed exposed to herbicide agents when he set foot in Vietnam, service connection for prostate cancer and its residuals is warranted on a presumptive basis. 2. Entitlement to service connection for erectile dysfunction and voiding dysfunction, secondary to prostate cancer The Veteran contends that he has current erectile dysfunction and urinary disability and that these disabilities are associated with his prostate cancer. The Board finds, for the following reasons, that the Veteran has current diagnoses of erectile dysfunction and voiding dysfunction and that these disabilities are caused by his now service-connected prostate cancer. A July 2014 VA male reproduction system conditions examination report shows the Veteran has current diagnoses of erectile dysfunction and voiding dysfunction (including nocturia and urine leakage). As for the etiology of these disabilities, a July 2008 examination report from I. Namihas, M.D. includes an opinion that the Veteran’s erectile dysfunction was related to his prostate cancer. There was no further explanation or rationale provided for this opinion. A December 2012 examination report from Sharp includes a diagnosis of erectile dysfunction that was partially secondary to his treatment for prostate cancer. There was no further explanation or rationale provided for this opinion. The physician who conducted the July 2014 VA examination opined that the etiology of the Veteran’s voiding dysfunction was the treatment received for his prostate cancer. There was no further explanation or reasoning provided for this opinion. The July 2014 examiner also separately opined that the Veteran’s erectile dysfunction was likely (“at least as likely as not”/“50 percent or greater probability”) proximately due to or the result of his prostate cancer. He reasoned that the erectile dysfunction started immediately after hormone treatment for prostate cancer and had not improved since that time. In the September 2014 examination report from Sharp, H.M. Henderson III, M.D. explained that the Veteran had urinary issues (urgency, frequency, and nocturia) and erectile dysfunction, and that these problems could be “attributed to the radiation therapy to his prostate.” Dr. Henderson also later noted that the Veteran had both urinary symptoms and erectile dysfunction as consequences of the proton radiation therapy received for his prostate cancer. There was no further explanation or rationale provided for these opinions. The July 2014 erectile dysfunction opinion is based upon an examination of the Veteran, a review of his claims file, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record. Therefore, this opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the medical professionals who provided the July 2008, December 2012, and September 2014 opinions and the July 2014 voiding dysfunction opinion did not provide any detailed rationales for their opinions, they nonetheless concluded based upon examination of the Veteran, treatment of the Veteran, and/or consideration of his treatment records and reported history that his erectile dysfunction and voiding dysfunction were caused by his now service-connected prostate cancer. These opinions are therefore entitled to some probative weight. See 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); 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). In sum, the Board finds that the evidence supports the conclusion that the Veteran’s erectile dysfunction and voiding dysfunction are caused by the treatment received for his now service-connected prostate cancer. There is no medical opinion contrary to this conclusion. The Board points out that service connection for disability due to medications taken for a service-connected disease or injury is a valid theory of entitlement. See Wanner v. Principi, 17 Vet. App. 4, 8 (2003) (noting that “the Board awarded service connection for tinnitus as ‘the result of treatment for a service-connected disability’”), rev’d on other grounds, 370 F.3d 1124 (Fed. Cir. 2004); Velez v. West, 11 Vet. App. 148, 157 (1998) (discussing “an implicit secondary-service-connection claim that his gastrointestinal disorder was the result of, inter alia, pain medication taken for his service-connected right-shoulder condition”); Jones v. Brown, 7 Vet. App. 134, 137 (1994) (reviewing Board’s denial of service connection for glaucoma as secondary to treatment for blepharoconjunctivitis). For the foregoing reasons, service connection for erectile dysfunction and voiding disability, both as secondary to now service-connected prostate cancer on a causation basis, is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.