Citation Nr: 21062162 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-43 962 DATE: October 6, 2021 REMANDED Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is remanded. Entitlement to service connection for erectile dysfunction, as secondary to prostate cancer, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1972 to January 1976, with additional service in the Naval Reserve. This case comes to the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office. The Veteran contends that he has prostate cancer which was caused by exposure to herbicide agents while he was on board a Navy ship off the coast of Vietnam. A veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents even though there is no record of such disease in service, and these diseases include prostate cancer. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Since the Veteran's claim was last denied in an October 2017 Supplemental Statement of the Case, the law surrounding possible eligibility for presumptions based on exposure to herbicide agents has changed. The Federal Circuit decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) has significantly increased the potential significance of any service performed within the 12-nautical mile territorial sea of the Republic of Vietnam during the Vietnam War in cases featuring alleged exposure to tactical herbicide agents. In addition, Congress recently enacted legislation entitled the Blue Water Navy Vietnam Veterans Act of 2019. 116 P.L. 23, 133 Stat. 966 (2019). The Veteran has written that he was stationed on the U.S.S. Biddle off of the coast of Vietnam from March 1 to November 30, 1972, and that they were close enough that he could see the shore of Vietnam from the ship. He has also written that one of his duties was to wash down the deck of the ship, and that there would be an orange substance on the deck. In this case, the Veteran's claim was previously denied solely on the basis of there being no relationship to his service, and no development was conducted regarding his possible exposure to herbicide agents. Now that it is possible to establish herbicide agent exposure based on blue water service off the coast of Vietnam, the Board requests that further development be completed regarding his possible exposure. The Board is unable to find that the evidence of record is sufficient to make a firm determination as to whether the Veteran did or did not have any presence within the 12-nautical mile territorial sea of Vietnam during his Vietnam War service. The Board notes that the Veteran's personnel records do show service on board the U.S.S. Biddle from March 1972 to August 1973, on board the U.S.S. Charles R. Ware from August 1973 to November 1974, and on board the U.S.S. William C. Lawe from November 1974 to January 1976. Accordingly, the Board remands the case for further factual development. The Veteran's claim for service connection for erectile dysfunction is based on it being secondary to his prostate cancer, and it is therefore inextricably intertwined with the prostate cancer issue, and is also remanded. The matters are REMANDED for the following action: 1. Perform all necessary development to determine whether the Veteran's shipboard service during the Vietnam War included any presence within the 12-nautical mile territorial sea of the Republic of Vietnam, or any similar area identified in the Blue Water Navy Vietnam Veterans Act of 2019. This development should include identifying each military ship aboard which the Veteran was present during his service, and should address his assertions that from March 1 to November 30, 1972, he served on board the U.S.S. Biddle, which was close to the shore of Vietnam. Contact all appropriate repositories for this information, and if necessary, request the deck logs and/or command histories as appropriate for each ship the Veteran served on, to verify whether they were within the 12-nautical mile territorial sea of the Republic of Vietnam. 2. If it is not found that the Veteran had ship service which qualifies him for a presumption of exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran, and notify him of VA's inability to verify the in-service herbicide agent exposure. 3. If it is found that the Veteran does qualify for a presumption of exposure to herbicide agents, schedule him for an examination to identify the current severity of his prostate cancer, and, if it has resolved, all current residuals. The examiner must also provide an opinion on whether it is at least as likely as not that the Veteran's erectile dysfunction has been caused or aggravated by his prostate cancer. A complete, well-reasoned rationale must be provided for all conclusions and opinions. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, Counsel 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.