Citation Nr: 20007114 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-52 783 DATE: January 28, 2020 ORDER Entitlement to service connection for prostate cancer, to include due to herbicide agent exposure, is granted. FINDING OF FACT 1. On April 8, 1970, the Veteran was serving on the U.S.S. Josephus Daniels (DLG-27). 2. On April 8, 1970, the U.S.S. Josephus Daniels (DLG-27) anchored in Da Nang Harbor, off the coast of Vietnam. 3. On April 8, 1970, the U.S.S. Josephus Daniels (DLG-27), while in Da Nang Harbor, between 1710 hours and 1924 hours, commenced maneuvering on various courses at various speeds while investigating surface contact. 4. On April 8, 1970, the U.S.S. Josephus Daniels (DLG-27), while in Da Nang Harbor, between 2005 hours and 2303, commenced maneuvering on various courses at various speeds while conducting anti-patrol boat exercises. 5. Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least in relative equipoise as to whether the Veteran served in active duty in close proximity to an area in which herbicide agents were used. CONCLUSION OF LAW The criteria for service connection for prostate cancer, including due to herbicide agent exposure, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from April 1969 until his honorable discharge in January 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board notes that June 2018, the Board denied the Veteran’s claim for type II diabetes mellitus under the same theory of entitlement. In 2019, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed its precedent from over a decade earlier to hold that herbicide agent exposure is presumed for veterans who “served in the Republic of Vietnam” based on service within the territorial sea of that country (so-called “Bluewater” veterans), instead of requiring that they set foot on land or navigated the inland waterways. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Since that decision, Congress passed the Blue Water Navy Vietnam Veterans Act of 2019 (“the BWN Act”) Pub. L. 116-23, to be codified at 38 U.S.C. § 1116A(c). That legislation supported the decision in Procopio and authorized VA to award disability benefits retroactively to Blue Water Navy Veteran’s, or their survivors, who had previously submitted a claim for benefits that was denied by VA for lack of service on the landmass or inland waterways of Vietnam. Under Nehmer, since 1991, the Secretary was mandated to add medical conditions to the list of conditions subject to a presumption of service connection based on herbicide exposure when sound medical and scientific evidence showed a positive association between the condition and herbicide agent exposure and members of the class were not required to request readjudication. Nehmer v. United States Veterans Admin., No. CV-86-6160 (N.D. Cal. 1991). The Procopio decision nor the BWN Act trigger the VA’s obligation under the Nehmer stipulation to readjudicate previously denied claims. Thus, unlike Nehmer class members, Veterans and survivors who previously sought service connection for a disability that was denied must, on or after January 1, 2020, file a new claim for the same disability in order to obtain retroactive benefits. Review of previously denied claims under the new law will not occur automatically. The Veteran is hereby notified that if he wishes to have his claim for entitlement to service connection for type II diabetes, to include due to herbicide agent exposure adjudicated, he must file a new claim for benefits in order to be considered for benefits, including retroactive benefits. 1. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure 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; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). The enumerated diseases which are deemed to be associated with herbicide exposure include prostate cancer and type II diabetes mellitus. 38 C.F.R. § 3.309(e). The Veteran asserts that his prostate cancer is related to in-service herbicide agent exposure. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). During the period on appeal, the Veteran was diagnosed and treated for prostate cancer. Specifically, he was diagnosed with adenocarcinoma of the prostate in July 2015 and underwent radiation treatment. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran served on the U.S.S. Josephus Daniels (DLG-27) from September 1969 to October 1, 1971 except for brief period of temporary duty at the Naval Training Center Great Lakes in June 1971. During the Veteran’s service, on April 8, 1970, the Veteran’s ship anchored in Da Nang Harbor from 0713 hours to 1342 hours. Furthermore, on April 8, 1970, the U.S.S. Josephus Daniels (DLG-27) conducted both interception and training exercises, maneuvering on various courses at various speeds for several hours. Therefore, affording the Veteran the benefit of the doubt, the Board finds that herbicide agent exposure is presumed under the BWN Act. (Continued on the next page)   Third, the Board finds that the evidence of record does support a finding that the Veteran’s prostate cancer is related to active military service and that prostate cancer is a disability that is among the listed diseases presumed to be etiologically related with herbicide agent exposure. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Accordingly, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is for prostate cancer, including due to herbicide agent exposure, is warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer 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.