Citation Nr: 20007745 Decision Date: 01/30/20 Archive Date: 03/05/20 DOCKET NO. 17-11 341 DATE: January 30, 2020 ORDER Service connection for prostate cancer, for accrued benefits purposes, is granted. REMANDED Service connection for bladder cancer, for accrued benefits purposes, is remanded. Service connection for pleural plaques due to asbestos, for accrued benefits purposes, is remanded. Service connection for the cause of the Veteran’s death is remanded. FINDING OF FACT The Veteran served onboard the USS Standley that was located within the territorial sea of the Republic of Vietnam in January 1969 and is presumed to have been exposed to herbicides. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1951 to June 1955, from September 1955 to April 1967 and from December 1967 to September 1973. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA). The Veteran died in November 2011 and the Appellant is the Veteran’s surviving spouse. Service Connection Prostate cancer Medical records reflect that prior to his death the Veteran was diagnosed with prostate cancer. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be established on a presumptive basis for certain disabilities resulting from exposure to herbicides. The diseases which are presumed to result from exposure to herbicides include prostate cancer. 38 C.F.R. § 3.309(e). The presumption requires exposure to an herbicide agent and a manifestation of the disease to a compensable degree at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to 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. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). On August 16, 2018, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: "Does the phrase 'served in the Republic of Vietnam' in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?" On January 29, 2019, the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 17-1821, which held that the phrase "service in the Republic of Vietnam" in 38 U.S.C. § 1116 includes the territorial sea (a 12-nautical mile area based on international law) of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008) (requiring a servicemember to actually set foot within land borders of Vietnam in order to be entitled to statutory presumption of herbicide exposure and service connection). In order for the herbicide presumption to apply, the Board must determine whether the Veteran served within the territorial sea of the Republic of Vietnam from January 9, 1962 to May 7, 1975. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019); VAOPGCADVIS 1-19 (March 29, 2019). According to military personnel records, the Veteran served aboard the USS Standley (DLG-32) from December 4, 1967 to March 25, 1969. A review of the deck logs reveals that in January 1969 the USS Standley anchored in Da Nang Harbor in the Republic of Vietnam. The Board finds that Da Nang Harbor is a Vietnamese port located within the territorial sea of the Republic of Vietnam. Accordingly, the Veteran is presumed to have been exposed to herbicides during active duty service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019); VAOPGCADVIS 1-19 (March 29, 2019). All doubt has been held in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given that the Board has found that the Veteran was exposed to herbicides during service, service connection for prostate cancer is warranted on a presumptive basis. 38 C.F.R. § 3.309(e); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019); VAOPGCADVIS 1-19 (March 29, 2019). Accordingly, the claim for service connection for prostate cancer for accrued benefits purposes is granted. REASONS FOR REMAND Service connection for bladder cancer As noted above, the Board has found that the Veteran was exposed to herbicides during service. However, bladder cancer is not a presumptive disease listed under 38 C.F.R. § 3.309(e). However, service connection may still be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The National Academy of Sciences, Engineering and Medicine has found that that there is “limited or suggestive evidence of an association” between bladder cancer and herbicide agent exposure. See National Academies of Sciences, Engineering, and Medicine, Veterans and Agent Orange: Update 2014 (2016). As such, there is an indication that bladder cancer may be associated with herbicide agent exposure and the Board therefore finds that remand is required for a VA examination and opinion addressing direct service connection (which has not previously been conducted/obtained). McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for pleural plaques due to asbestos The Appellant contends that the Veteran’s pleural plaques were caused by asbestos exposure in service, to include while aboard the USS Missouri. The Veteran’s military occupational specialty (MOS) was boatswain’s mate and seaman, and although the risk of asbestos exposure is considered minimal, a VA opinion should be obtained regarding the etiology of his pleural plaques. Regarding claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See Dyment v. West, 13 Vet. App. 141, 145 (1999). If an MOS is listed as minimal, probable, or highly probable asbestos exposure should be conceded for the purposes of scheduling an examination. Service connection for cause of death This issue is inextricably intertwined with the claim for service connection for bladder cancer remanded herein, so consideration is deferred. The matters are REMANDED for the following action: 1. Seek an opinion from an appropriate medical professional regarding the etiology of the Veteran’s bladder cancer. After reviewing the file, the physician must provide an opinion as to the following: a) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s bladder cancer had its onset during active service or was caused or aggravated by any in-service disease, event, or injury, to include conceded in-service herbicide exposure? b) Is it at least as likely as not that the Veteran’s bladder cancer was caused or aggravated by his prostate cancer? The examiner’s attention is invited to the National Academy of Sciences, Engineering and Medicine finding that that there is “limited or suggestive evidence of an association” between bladder cancer and herbicide agent exposure.” See National Academies of Sciences, Engineering, and Medicine, Veterans and Agent Orange: Update 2014 (2016). The examiner is informed that the mere fact that a VA presumption has not been established for a particular disorder (i.e., bladder cancer) is not dispositive of the issue of nexus. 2. Seek an opinion from an appropriate medical professional regarding the etiology of the Veteran’s pleural plaque. After reviewing the file, the physician must provide an opinion as to the following: Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s pleural plaque had its onset during active service or was caused or aggravated by any in-service disease, event, or injury, to include conceded asbestos exposure? JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hemphill 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.