Citation Nr: 20002134 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-36 746 DATE: January 9, 2020 ORDER Service connection for prostate cancer is granted. REMANDED An initial compensable rating for residual scars, status post basal cell carcinoma of the nose and left temple. An initial compensable rating for a scar, status post basal cell carcinoma of the anterior chest.   FINDING OF FACT The Veteran’s prostate cancer is presumed to have been caused by in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1960 to August 1964. The case is on appeal from a June 2014 rating decision. In April 2019, the Veteran testified at a Board hearing. In a November 2019 letter, the Board informed the Veteran that the case had been stayed. In January 2020, the Secretary lifted the stay on adjudicating claims of service connection that may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (BWN Act) based on claims of exposure to herbicides due to service off of the coast of the Republic of Vietnam. Service connection for prostate cancer. I. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam also includes service within the 12 nautical mile territorial sea of Vietnam. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). See also 38 U.S.C. § 1116A(d). Where a veteran was exposed to an herbicide agent during active military, naval, or air service and prostate cancer becomes manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). II. Discussion The Veteran contends that he was exposed to herbicides during service. More specifically, he maintains that while serving on board the USS Princeton, the ship operated off of the coast of Vietnam and docked in Da Nang harbor. Lending credibility to the Veteran’s assertions are his service personnel records (SPRs) reflecting that he served on board the USS Princeton (LPH-5) from August 1961 to August 1964. See SPRs in September 2017. A “ship list” that VA has compiled reflects that the USS Princeton operated on Vietnam’s coastal waters as troop transport with helicopters and smaller vessels transporting troops on and off the shore during April 1962. See Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents (located at https://www.va.gov/shiplist-agent-orange.pdf); see also Personnel Information Exchange System (PIES) response in October 2013. Moreover, an Itinerary of the USS Princeton for the period January 1962 to May 1962 reflects the ship operated between ports in Da Nang, Vietnam, and those is Okinawa and the Philippines. See SPRs in April 2015. In addition, a fellow servicemember stated that he served alongside the Veteran from 1962 to 1964, during which they transported troops and equipment from Okinawa to Vietnam, and moored in Da Nang harbor. See September 2017 submission. As noted above, the Federal Circuit recently issued a decision expanding the eligibility for presumptive service connection to all veterans who served on ships in the territorial seas, within 12 nautical miles, of the Republic of Vietnam. See Procopio, 913 F.3d at 1371. As Da Nang harbor is clearly within the 12 nautical mile boundary which defines the territorial seas, exposure to herbicides during service is presumed. Further, private treatment records in April 1998 reflect that the Veteran underwent a radical prostatectomy. In addition, in April 2019, the Veteran’s oncologist reported that the Veteran was under his care for prostate cancer, noting active disease indicated by a rising prostate specific antigen (PSA) consistently out of the normal range. As noted above, prostate cancer, which is shown to have manifested to a compensable degree, is a disease that is presumed to be due to exposure to herbicide agents and there is no affirmative evidence to the contrary. Thus, service connection for prostate cancer based on presumed exposure to herbicide agents during service in the territorial seas in Vietnam is warranted. The grant of service connection for the Veteran’s prostate cancer based on exposure to herbicides during service in Vietnam obviates the need for discussion of his radiation exposure during Operation Dominic. REASONS FOR REMAND 1. An initial compensable rating for residual scars, status post basal cell carcinoma of the nose and left temple. 2. An initial compensable rating for a scar, status post basal cell carcinoma of the anterior chest. The Veteran seeks compensable ratings for residual scars status post basal cell carcinoma. The noncompensable ratings were assigned under Diagnostic Codes (DCs) 7800 and 7805, respectively. The Board notes that the rating criteria for evaluating skin conditions were amended effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). These changes should be considered on readjudication. At the Board hearing in April 2019, the Veteran noted cryosurgery for over 150 pre-cancerous lesions on his back, arms, shoulders. The Board notes that in addition to the service-connected scars on his face and chest, the June 2014 VA skin examination report reflects two similar surgical scars on the posterior aspect of the Veteran’s upper back. In addition, the record reflects treatment for squamous and/or basal cell carcinoma, to include in November 2015. See private treatment records in November 2019. Additionally, the Veteran’s representative asserted that extraschedular consideration is warranted due to the impact the Veteran’s service-connected scars have on the Veteran’s ability to maintain gainful employment. Therefore, the Board finds the issue of whether an extraschedular rating is warranted has been expressly raised and should be adjudicated by the RO as intertwined with the schedular rating issues. In view of the evidence and the Veteran’s assertions, the Board finds that another VA examination with a medical opinion is warranted to better assess the extent/severity of the scars, as well as to address the aspects of the claims reflected above. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to assess the current severity/extent of his scars, status post basal cell carcinoma, including of the face and chest. The examiner should address the effect that the Veteran’s service-connected disabilities have on his ability to secure or follow a substantially gainful occupation. Rationale for all opinions expressed should be provided. 2. When the case is readjudicated, the RO should consider the issue of whether an extraschedular rating is warranted for the scars as well as the amended criteria for evaluating the skin. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.