Citation Nr: 20008143 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-23 244 DATE: January 30, 2020 ORDER 1. Entitlement to service connection for lung cancer is denied. 2. Entitlement to service connection for coronary artery disease (CAD), to include ischemic heart disease, is denied. FINDINGS OF FACT 1. The most probative evidence does not establish that the Veteran was exposed to tactical herbicides in connection with his service. 2. The most probative evidence establishes that lung cancer was not caused or is otherwise attributable to service. 3. The most probative evidence establishes that ischemic heart disease was not caused or is otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lung cancer have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy (Navy) from August 1966 to May 1970. Regretfully, he passed away in October 2017. The Appellant is his surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the September 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. A. Procedural Background In March 2017, the Veteran filed her VA 21-526EZ Form seeking service connection for lung cancer and CAD. The VA 21-526EZ Form expressed the Veteran’s belief that these disabilities were attributable to his exposure to tactical herbicides during his active service in the Republic of Vietnam (Vietnam). In September 2017, the RO denied service connection for the Veteran’s lung cancer and CAD. In January 2018, following the Veteran’s passing, the Appellant applied to substitute and a Notice of Disagreement (NOD). In April 2018, the RO issued a Statement of the Case. In May 2018, the Appellant filed a Substantive Appeal.   B. Governing Legal Authority Service connection may be granted on a primary basis for a disability resulting from a disease or injury incurred in service during a period of war or other than war. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Primary service connection can be established directly or presumptively. See 38 C.F.R. §§ 3.303, 3.304; Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board gives a claimant the benefit of the doubt on any issue material to his/her claim when evidence is in equipoise, but the Board determines the competency and credibility of the evidence, and weighs the competence and probative value of the evidence, including lay statements, against the entirety of the record. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Direct service connection requires competent evidence of a current disability, a precipitating in-service event, and a causal connection between such an event and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). There are also numerous ways to establish a presumptive service connection. For instance, “[i]n 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who served in . . . Vietnam” during the Vietnam era. Procopio v. Wilkie, 913 F.3d 1371, 1373 (Fed. Cir. 2019) (quotation marks omitted). Initially, the phrase “service in the Republic of Vietnam” meant service only on Vietnam’s landmass and inland waterways. Effective January 29, 2019, the meaning of this phrase was expanded to encompass service within Vietnam’s 12-nautical-mile territorial sea. Id. Assuming a veteran establishes that, during the Vietnam era, (s)he served in Vietnam within the parameters set forth in Procopio, VA regulations allow him/her to obtain service connection for certain diseases when the evidence might otherwise not indicate that service connection is warranted. See 38 C.F.R. § 3.303(d). Specifically, 38 C.F.R. § 3.307 provides that a veteran who served in Vietnam from January 9, 1962, to May 7, 1975, is presumed to have been exposed to a tactical herbicide agent, to include Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during his/her service. See 38 C.F.R. § 3.307(a)(6)(iii). Thus, certain diseases, such as lung cancer and CAD, are deemed service connected if the veteran was presumptively exposed to a tactical herbicide during the Vietnam era. See 38 C.F.R. § 3.309(e) and Note (2). C. Factual Background According to the Veteran’s military personnel records (MPRs), short of the three months of his initial training served from August to October 1966 at the Naval Station Great Lakes, near Chicago, Illinois, his entire active duty was served onboard the USS Hancock. An Essex-class aircraft carrier assigned to the base at Alameda, California, the USS Hancock operated at the Point Yankee (Yankee Station) during the Vietnam era, launching her planes for strikes at enemy positions ashore. See http://www.usshancock association.org/history-01.php. The Yankee Station was located about 90 nautical miles from the North Vietnamese shore, situated near the center of the Gulf of Tonkin, i.e., a body of water that is the northwest arm of the South China Sea bounded by the coasts of the Republic of China (China) and Vietnam. As to the configuration/measurements of the Gulf of Tonkin, the Board takes a judicial notice that: The Gulf of Tonkin . . . has an area of . . . about 24,000 square nautical miles . . . . categorized as a semi-enclosed gulf [that] measures 170 nautical miles at its widest and has two outlets: the Qiongzhou Strait on the north, approximately 19 nautical miles in width, and the major passage to the south, 125 nautical miles wide. Zou Keyuan, Maritime Boundary Delimitation in the Gulf of Tonkin, Ocean Deployment & Int’l L. 235 (1999) (citing Ewan W. Anderson, An Atlas of World Political Flashpoints: A Sourcebook of Geopolitical Crisis 211 (London Pinter Reference, 1993), original brackets omitted). During her operations at the Gulf of Tonkin, the USS Hancock cruised to/from and was in port in Pearl Harbor (Hawaii), Yokosuka and Sasebo (Japan), Subic Bay (Philippines), and Hong Kong. In 1967, these in-port periods took place from January 22 to 25, February 1 to 2, March 1 to 11, April 15 to 25, June 6 to 9 and 29 to 30, July 3 to 6 and 10 to 12. In 1968, these periods took place on July 24 and from 27 to 31, August 8 to 11 and 15 to 17, September 6 to 11, October 17 to 22 and 25 to 31, December 5 to 11 and 14 to 20. During 1969, these periods occurred from 16 to 27 of January, February 17 to 21, August 11 to 15 and August 28, September 26 to October 2, October 29 to November 20, and December 19 to January 2, 1970. During the portion of 1970 when the Veteran was on active duty, these periods were in January 11 to 17, February 11 to 15, February 26 to March 3, March 28 to 30, March 31 to April 1. See http://www.usshancockassociation. org/history-09.php. While the Veteran’s service in Vietnam was onboard of the USS Hancock, he did not allege that he was exposed to tactical herbicides in connection with his service onboard the aircraft carrier. Rather, he asserted that his exposure to herbicides took place during four tours of temporary additional duty (TAD) that he served on unspecified “Swift Boat(s)” for a total period of 21 weeks. “Swift Boats,” officially known as Patrol Craft Fast vessels, were produced in three generations knows as “marks,” i.e., Mk I, Mk II, and Mk III. Therefore, Swift Boats of different generations had different configurations and length: Mk I and Mk II were about 50 feet long, while Mk III was 51 feet. However, all Swift Boats were powered by two 12V71N diesel engines, and each Swift Boat was operated by six personnel consisting of an officer, a boatswain, a radar/ communications operator, an engineer, and two gunners. See https://www.military factory.com/ships/detail.asp?ship_id=Swift-Boat-PCF. The Navy operated Swift Boats only in the Mekong River and at the Ca Mau Peninsula, i.e., the most southern tip of Vietnam located more than 1,100 kilometers away from the Gulf of Tonkin, where the USS Hancock conducted her operations. In addition, the Navy operated Patrol Boats, Riverline (PBR). Produced in two generations, PBRs were 31 or 32 feet long, each powered by two 6V53N diesel engines, as well as two pump-jet drives. Each PBR was operated by four personnel consisting of an officer, an engineer, a front gunner, and a back gunner. PBRs focused on inspections of local vessels navigating Vietnam’s main rivers. All these rivers run from the northern landmass to the southern shore of Vietnam. https://www.youtube.com/watch?v=KzFVMFv-3kM (a Navy documentary about PRBs and Swift Boats). Every PBR had its daily maintenance performed at a larger ship to which the PBR was assigned. Such larger ships were anchored about two nautical miles off the southern coast of Vietnam, being situated at the front of the mouth of the river where the ship’s PBRs conducted their inspections. Each PBR was manned and maintained by the personnel stationed onboard the ship and trained to perform every PBR function, i.e., of an officer, an engineer, and gunners. PRBs were supervised by the commanding personnel stationed on the ship, and all enemy-engagement actions by PBRs were supported by Seawolf helicopters that were also manned by personnel stationed onboard the ship. Id.; see also https://www.youtube.com/watch?v=zbyqS5pk9GY (a Navy documentary about PBRs’ operations and staffing). Just like the Swift Boats, PBRs operated only at the southern tip of Vietnam and inland waterways, i.e., more than 1,100 kilometers away from the Gulf of Tonkin where the USS Hancock operated. It would have taken a Swift Boat more than 17 hours to cover this distance, since a Swift Boat’s maximum speed was 32 knots, i.e., 59 km per hour. It would have taken a PBR over 20 hours to cover the same distance since a PBR had the maximum speed of 27 knots (50 km per hour). In support of his position that he was exposed to tactical herbicides during his TADs, the Veteran filed two May 2017 Statements in Support of Claim, alleging: I served onboard the USS Hancock . . . throughout the duration of my enlistment. I served . . . as a Boatswain’s Mate. In late 1966, the [USS] Hancock went to San Diego for a while[,] and I attended [a] Coxswain school. In 1967[, the USS Hancock was] deployed to Vietnam in the Gulf of Tonkin. I was sent TAD to [the] mainland [of] Vietnam to serve in the brown waterways on a Swift [B]oat. It was a 30 ft. aluminum Swift [B]oat with 4 jet engines[,] and we patrolled the Gulf [of Tonkin] and [went] up some [unspecified] rivers. This was a 6 week tour[,] and then I went back to the [USS] Hancock[,] and the[n] back again on a 3 week tour. In 1968[,] after being home stateside for a while[, the USS] Hancock went back to the Gulf of Tonkin[,] and again I served a 4 week tour on the Swift [B]oat in the [G]ulf. In 1969[, it was the] same thing[,] except [that] this time I served an 8 week tour on the Swift [B]oat. In July 2017, the Appellant filed a lay statement in support of the Veteran’s claims. She stated as follows: [The Veteran] has told me about his Navy years. He was aboard the aircraft carrier [the] USS Hancock. He was flown off the carrier on a helicopter, and flown to Vietnam waters. He told me he was put on a Swift Boats or PRB boats throughout the years 1968-1969 and 1970. However, no statement in the MPRs and other evidence of record indicates that the Veteran had any TAD on a Swift Boat or a ship with assigned PBRs. D. Swift Boats and PBRs The Veteran’s and the Appellant’s accounts as to the vessel(s) that he served on during his alleged TADs, as well as the period(s) of his TADs, are inconsistent. The Veteran asserted that he had four TAD periods (one in 1967, two in 1968, and one in 1969) on a Swift Boat, while the Appellant stated that the Veteran told her that he had TADs from 1968 to 1969, and then in 1970, and it was on either Swift Boats or PBRs. Further, while the Veteran asserted that he served on a “Swift Boat” that was 30-feet long, public information demonstrates that no 30-feet-long “Swift Boat” was operated by the Navy during the Vietnam era: all PRBs were 31 or 32 feet long, while all Swift Boats were 50 or 51 feet long. The Veteran also asserted that, in late 1966, while the USS Hancock was in port in San Diego, he was at a coxswain school and then served as a Boatswain’s Mate. However, the MPRs demonstrate that the only training the Veteran had in 1966 was his basic training in Illinois, following which he became a Sailor Assistant. Moreover, the MPRs demonstrate that the Veteran never received coxswain or boatswain training during the entirety of his active service. After his basic training, he received Basic Seaman training and Basic Military Requirements training in March 1967, and then Basic Military Requirements Step Two and Step Three trainings, and Military Requirements Petty Officer training in December 1967. Moreover, after becoming a Sailor Assistant, the Veteran advanced to Petty Officer Third Class, but he did not advance to Petty Officer Second Class or higher, to include a noncommissioned or commissioned officer. Therefore, the Board initially assumes that the Veteran’s May 2017 Statements in Support of Claim erroneously alleged that he served his TADs on “Swift Boat(s),” and that he meant to allege that he served on a PBR since he indicated that the vessel he served on during his TADs was 30-feet long. However, even with such an assumption, the Veteran’s assertion is inconsistent with the evidence. The Veteran alleged that the vessel(s) he served on during his TADs was/were patrolling both Vietnam’s inland rivers and the Gulf of Tonkin coastal waters. However, PBRs did not operate in the Gulf of Tonkin. Further, given the distance between the Gulf of Tonkin and the most southern tip of Vietnam where the ships to which PBRs were assigned were anchored, it would have taken a PBR 20 hours to reach the Gulf of Tonkin from the river deltas, and even longer from upstream river waters. Further, any PBR operation in the Gulf of Tonkin would have rendered any support by Seawolf helicopters, any supervision by the assigned ship, and any daily maintenance at the assigned ship impossible. Further, if the Board were to assume, arguendo, that the Veteran’s Petty Officer Third Class duties qualified him as a Boatswain’s Mate, the personnel of a PBR did not envision a Boatswain or a Boatswain’s Mate, since all PBR crews were limited to an officer, an engineer, and two gunners. Moreover, the MPRs demonstrate that the Veteran was not qualified, in terms of rank and training, to perform the functions of an officer, an engineer, or a gunner. In addition, the Veteran’s statement that the vessel(s) he served on during his TADs was/were powered by four “jet engines” is inconsistent with the public record demonstrating that every PBR had two diesel engines and two jet pumps that were visibly different from the engines in terms of their location, appearance, and operation. Alternatively, the Board assumes that the Veteran’s May 2017 Statements in Support of Claim erroneously alleged that the “Swift Boat” on which he served his TADs was 30-feet long, and that he meant to assert that she was 50-feet long. However, the Veteran’s assertion remains inconsistent with the evidence of record. This is so because Swift Boats did not operate in the Gulf of Tonkin. Further, while a Swift Boat personnel allowed for a Boatswain, it did not allow for a Boatswain’s Mate, and the Veteran was never qualified as a Boatswain. Moreover, a Swift Boat was powered by two diesel engines, not four “jet engines,” as the Veteran alleged. In addition, the Veteran and Appellant’s assertion that he was flown on a helicopter from the USS Hancock to a Swift Boat or a PBR for each of his alleged TAD is inconsistent with the Navy policies and the technologies available at the time. No public information or evidence indicates that the Navy policies allowed the Veteran to remain on up-to-two-months TADs without being reassigned to a Swift Boat or a ship operating PBRs during the periods when the USS Hancock was leaving the Gulf of Tonkin for her frequent tours to Hong Kong, Subic Bay, Sasebo and Yokosuka, i.e., the destinations that are up to 4,000 km away. Further, since the military personnel-transporting helicopter of the Vietnam era, i.e., the Bell UH-1 series Iroquois, known as “Huey,” had the range of 293 miles (i.e., 467 km) and the speed of 127 mph (i.e., 204 km per hour), it would have required two separate helicopter flights and a total of five hours of flight time, without factoring in the time between these two flights, to fly the Veteran, a Seaman Assistant and then a Petty Officer Third Class, from the USS Hancock to his TAD, and back. See https://fas.org/man/dod-101/sys/ac/uh-1.htm. No public information or evidence of record suggests that the Navy arranged for such flights for personnel of the Veteran’s rank and training. Therefore, the Board concludes that the evidence of record is against finding that the Veteran served a TAD on either on a PBR or Swift Boat that patrolled Vietnam inland waterways. Correspondingly, the Board is without a basis to find that he was exposed to tactical herbicide in connection with his alleged TADs. E. USS Hancock Although the Veteran’s submissions clarified that he was basing his claims solely on his alleged TAD and not on his service onboard the USS Hancock, the Board finds it warranted to examine whether, under the guidance provided in Procopio, the Veteran’s service onboard the USS Hancock entitled him to presumptive service connection for his CAD and lung cancer. True, the USS Hancock was repeatedly deployed in the Gulf of Tonkin, but she did not conduct her operations in Vietnam’s territorial sea, given that the Yankee Station was located 90 nautical miles from the coast of Vietnam, i.e., 78 nautical miles away from the territorial sea. Further, the southern outlet of the Gulf of Tonkin is 125 nautical miles wide, i.e., 113 nautical miles of the outlet, width-wise, falls outside Vietnam’s territorial sea. Therefore, the Board is without a basis to conclude that the USS Hancock had to enter or exit the Gulf of Tonkin through the portion of the outlet falling within Vietnam’s territorial sea. Accordingly, the evidence is against finding that the Veteran was exposed to tactical herbicides during his service onboard the USS Hancock. Therefore, he is not entitled to presumptive service connection for his CAD and lung cancer. F. Direct Service Connection The Board, however, is mindful that, even though the Appellant has not shown the Veteran’s entitlement to a presumptive service connection, she may nonetheless establish a direct service connection by providing competent evidence of precipitating in-service event(s) and a probative medical opinion linking the precipitating event(s) to the Veteran’s CAD and/or lung cancer. Here, however, the Veteran’s STRs do not contain any evidence reflecting his complaints or diagnosis of, or treatment for a condition that could be construed as related to the Veteran’s CAD and/or lung cancer. Moreover, there is no medical opinion of record linking the Veteran’s CAD or lung cancer to an in-service event. Rather, the Veteran’s September 2015 medical treatment records demonstrate that his initial treatment for lung cancer took place in 2014, i.e., about 44 years after his discharge. Similarly, the Veteran’s November 2016 medical treatment record indicates that his CAD was diagnosed and treated in 2015 following a stent procedure undertaken to alleviate calcification of his coronary artery. Since both of the Veteran’s disabilities were diagnosed and treated approximately 44 years following his separation from service, the span of time counsels against an award of service connection for his CAD and lung cancer. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran’s and the Appellant’s beliefs that his CAD and lung cancer were attributable to service. However, while certain disabilities are capable of lay observation that a veteran is competent to report, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), the Veteran’s or the Appellant’s opinion cannot qualify as competent medical evidence establishing a nexus between his active service and his heart condition or carcinoma since neither the Appellant nor the Veteran has not been shown to possess the medical expertise needed to render a nexus opinion in medically complex matters, such as the etiology of these disabilities, see King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009). Therefore, the preponderance of the evidence is against finding that the Veteran’s CAD or lung cancer was caused by or otherwise attributable to service. Accordingly, the doctrine of benefit of the doubt rule is not for application, and the Appellant’s claims are denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan 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.