Citation Nr: 21064612 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-12 551 DATE: October 21, 2021 ORDER Entitlement to service connection for prostate cancer is denied. FINDING OF FACT The most competent evidence of record does not show that the Veteran was exposed to herbicide agents during his active service; there is no other evidence connecting the Veteran's prostate cancer to his active service. CONCLUSION OF LAW The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1967 to August 1971; to include over a year of foreign service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in October 2019. A transcript of the hearing is of record. This matter was previously remanded by the Board in January 2020 for additional development. Specifically, the Board directed that VA determine whether the Veteran was exposed to herbicide agents as a result of his naval service. Such development having been completed, the Board finds substantial compliance with its remand instructions. 1. Entitlement to service connection for prostate cancer The Veteran asserts that he is entitled to service connection for his prostate cancer due to exposure to herbicides. Generally, to establish service connection there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 U.S.C. § 1116(f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (e), will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the listed diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). While VA had formerly interpreted the presumption to apply only to those service members who served on the landmass of the Republic of Vietnam or in its inland waterways, the Court of Appeals for the Federal Circuit determined in Procopio v. Wilkie that such a reading was too narrow; in that decision, the Federal Circuit ruled that navy personnel whose duties took them within the 12 nautical mile area around the Republic of Vietnam were also subject to this presumption. 913 F.3d 1371 (Fed. Cir. 2019). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). VA treatment records from September 2016 document the Veteran having a history of prostate cancer. The Veteran served aboard the U.S.S. Hancock, an aircraft carrier, in 1970 and 1971. During the Veteran's October 2019 hearing, the Veteran testified that while he did not go on land during his deployment to Vietnam, he was close enough to view fishing boats which were too small for deep water. In the previous January 2020 Board remand, the question before the Board was whether the Veteran had been exposed to herbicides by serving within 12 nautical miles of Vietnam. Since the January 2020 Board remand, the VA has attempted to verify that the U.S.S. Hancock was in or near Vietnam from October 22, 1970 to June 3, 1971. Using the logbooks from the U.S.S. Hancock, a VA researcher determined that at no time during the period when the Veteran was aboard that ship did it transit within the 12 nautical mile zone around the Republic of Vietnam. Exposure to herbicide agents therefore cannot be conceded, even under the wider scope of the Procopio decision. Because the Veteran has not contended that he set foot on the landmass of the Republic of Vietnam, and because the objective evidence of record places his ship outside of the 12 nautical mile zone, the Veteran is not presumed to have been exposed to herbicide agents as a result of his naval service. Service connection on a presumptive basis is therefore not warranted. To the extent that the Veteran contends that he saw small fishing boats that could not have traveled far from shore, the Board finds any such contention outweighed by the objective evidence provided by the logbooks. Finally, considering service connection on a direct basis, there is no evidence of an in-service incurrence or a nexus to service of the Veteran's claimed cancer other than his possible exposure to herbicide agents. Absent such evidence, service connection on a direct basis is not warranted, and no VA examination is required prior to making a decision. In summary, the objective evidence of record does not establish that the Veteran was presumed to have been exposed to herbicide agents, and there is no evidence that his claimed disability otherwise had its onset in or is related to his active service. The weight of the evidence is against the Veteran's claim, and there is no doubt to be resolved. Service connection for prostate cancer is therefore not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, Associate 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.