Citation Nr: 20011995 Decision Date: 02/12/20 Archive Date: 02/12/20 DOCKET NO. 11-14 111 DATE: February 12, 2020 REMANDED Entitlement to service connection for peripheral neuropathy is remanded. ORDER Entitlement to service connection for prostate cancer is granted. FINDING OF FACT Prostate cancer is presumed to be related to exposure to herbicide agents in service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of a veteran (the Veteran) who had active duty service from September 1965 to August 1968. The Veteran died in June 2018. During the course of the appeal, the appellant was substituted for the Veteran as the VA claimant. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2019 Order of the United States Court of Appeals for Veterans’ Claims (Veterans Court). The appeal originated from a July 2010 rating decision of the RO in Roanoke, Virginia. In July 2014, the Veteran and the appellant presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge in Washington, D.C. A transcript of the hearing is associated with the claims file. During the Board hearing, the Veteran was informed as to the basis for the RO’s denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. In a decision dated in October 2014, the Board denied these issues. The Veteran appealed that decision to the Veterans Court. In an Order dated in December 2015, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s October 2014 decision, and remanded these issues to the Board for additional development consistent with the Joint Motion. In June 2016, the Board again denied these claims. That decision was also appealed to the Veterans Court. In an Order dated in May 2019, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board’s June 2016 decision, and remanded these issues to the Board for additional development consistent with the Joint Motion. On July 1, 2019, the Secretary of Veterans Affairs directed the Board to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 until the effective date of the Act, January 1, 2020. Further adjudication of these matters was accordingly stayed. Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established a presumption of exposure to herbicide agents applicable to veterans who served in the Republic of Vietnam during the Vietnam War, and a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, or who are shown to have been actually exposed to herbicide agents during service. 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. 38 C.F.R. § 3.307(a)(6)(iii). Recently, in Procopio v. Wilkie, 913 F.3d 1371 (2019), the en banc the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that 38 U.S.C. § 1116 unambiguously expressed Congress’s intent that those who served in the 12-nautical-mile territorial sea of the “Republic of Vietnam” are entitled to the presumption of herbicide exposure. 913 F.3d. at 1380-81. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The herbicide-presumptive diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii) After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2019). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for prostate cancer The appellant is seeking service connection for prostate cancer, which she contends is related to the Veteran’s exposure to herbicide agents during his service aboard the Destroyer USS Walke (DD-723) in the waters offshore the Republic of Vietnam. In particular, she contends that the Walke was moored in Da Nang Harbor while the Veteran was on board. The Board has denied this claim twice on the finding that the Veteran was not presumed to have been exposed to herbicides as he never set foot on land and was not present on the inland waterways of the Republic of Vietnam. The Board’s initial October 2014 denial was vacated by the Veterans Court based on the agreement of the parties to the December 2015 Joint Motion that the Board had not applied a subsequent decision of the Veterans Court in Gray v. McDonald, 27 Vet. App. 313 (2015), which found VA’s interpretation of 38 C.F.R. § 3.307(a)(6)(iii) is arbitrary and capricious insofar as it designates Da Nang Harbor as offshore waters rather than an inland waterway without providing a principled reason for that designation. After applying the post-Gray regulatory provisions, the Board again denied the claim in June 2016. Subsequent to that denial, the Federal Circuit held in Procopio, supra, that the herbicide presumptions unequivocally include the 12-mile territorial sea offshore the Republic of Vietnam. After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for prostate cancer have been met. It is undisputed that the Veteran served aboard the USS Walke from November 16, 1965, to August 28, 1968 (Record 01/08/2010 at 10). It has been confirmed that the USS Walke was present in Da Nang Harbor and that the Veteran participated in operations to rescue a downed pilot in Da Nang Harbor (Record 02/04/2010 at 2). It is undisputed that all of Da Nang Harbor is within the 12-mile territorial sea offshore the Republic of Vietnam. Given the undisputed presence of the Walke in Da Nang Harbor, and pursuant to the holding of the Federal Circuit in Procopio, it is now undisputed that the Veteran was present in the Republic of Vietnam during the presumptive period. Accordingly, the Veteran is presumed to have been exposed to the herbicide agents specified under 38 C.F.R. § 3.307(a)(6)(i) during his active duty service. As prostate cancer is listed among the herbicide-presumptive diseases, and as there is no evidentiary basis to rebut the presumption of service connection, the Board finds that service connection for prostate cancer is warranted. As the Board has granted the maximum benefit sought on appeal with respect to this claim, the Board finds that there is no prejudice resulting from any deficiency in the duty to notify or assist. REASONS FOR REMAND Entitlement to service connection for peripheral neuropathy is remanded. The herbicide presumptive diseases include early-onset peripheral neuropathy. 38 C.F.R. § 3.309(e). The regulations formerly referred to acute and subacute peripheral neuropathy; however, effective September 6, 2013, VA adopted a proposed rule to amend its adjudication regulations regarding presumptive service connection for acute and subacute peripheral neuropathy associated with exposure to certain herbicide agents. Specifically, based on findings from the September 29, 2010, National Academy of Sciences (NAS) report titled, Veterans and Agent Orange: Update 2010 (hereinafter “Update 2010”), which concluded that early-onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition. The amendment replaced the terms “acute and subacute” in 38 C.F.R. § 3.307(a)(6)(ii) and 38 C.F.R. § 3.309(e) with the term “early-onset” and removed the Note to 38 C.F.R. § 3.309(e) requiring that the neuropathy be “transient.” The changes effectively removed the requirement that acute and subacute peripheral neuropathy appear “within weeks or months” after exposure and that the condition resolve within two years of the date of onset in order for the presumption to apply. This amendment clarified that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure. However, it did not change the requirement that peripheral neuropathy must have become manifest to a degree of ten percent or more within one year after the last in-service exposure in order to qualify for the presumption of service connection. In Update 2010, NAS found that evidence did not support an association between herbicide exposure and delayed-onset peripheral neuropathy, which NAS defined as having its onset more than one year after exposure. See 78 FR 54763-01. Indeed, VA has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. These include chronic peripheral nervous system disorders. See Notice, 75 Fed. Reg. 32540-03 (2010). Thus, to qualify for presumptive service connection, early-onset peripheral neuropathy must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a). Here, the date of onset is many decades after service separation. The appellant has not asserted that peripheral neuropathy was incurred in service on a direct basis. Service treatment records are silent for diagnosis or treatment of peripheral neuropathy during service. Private treatment records dated subsequent to service show that the Veteran was not diagnosed with peripheral neuropathy for decades after separation from service. The Veteran submitted an April 2013 private medical opinion by S. Soueidan, MD (Record 05/22/2013). This letter discusses the results of EMG testing, which showed neuropathy affecting the left medial, ulnar, and radial nerves. Dr. Soueidan stated that the Veteran’s neuropathy has been gradual in its onset. “It is likely related to Agent Orange Exposure.” The basis for this opinion is not stated and there is no discussion the exclusion of chronic peripheral nervous system disorders with onset later than one year after exposure from the herbicide presumptions. As there is an opinion purporting to relate peripheral neuropathy to presumed exposure to herbicide agents, the Board finds that the duty to assist requires additional development to obtain an adequate opinion, i.e., an opinion accompanied by a rationale that explains the opinion in terms of herbicide presumptions, which include early-onset peripheral neuropathy, but not chronic peripheral nervous system disorders with onset later than one year after exposure. The matter is REMANDED for the following action: 1. Obtain an appropriate medical opinion regarding the etiology of the Veteran’s peripheral neuropathy. The relevant documents in the claims file should be made available to the opinion provider. The opinion provider is informed that the herbicide presumptive provisions include early-onset peripheral neuropathy, which must have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service, but do not include chronic peripheral nervous system disorders with onset later than one year after exposure. The opinion provider is requested to state whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed peripheral neuropathy is causally or etiologically related to the Veteran's active service, to include presumed herbicide exposure. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or worsening as it is to find against causation or worsening. All opinions are to be accompanied by a rationale consistent with the evidence of record and consistent with the applicable herbicide provisions. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the appellant and her representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.