Citation Nr: 21066314 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-21 125 DATE: October 29, 2021 ORDER Service connection for prostate cancer is denied. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence is against a finding that the Veteran exposed to herbicide agents while serving on the USS Kearsarge or otherwise during his active duty service. 2. The preponderance of the evidence is against the Veteran's prostate cancer being etiologically related to his service since it did not manifest during service, and was diagnosed nearly 40 years afterwards. CONCLUSION OF LAW The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1112, 1116, 1116A, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1963 to August 1967 and was awarded the Vietnam Service Medal (One Bronze Star). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in August 2019. A transcript of the hearing has been associated with the file. In February 2020, this matter was remanded for additional development. Since that development has occurred and prior remand directives were substantially complied with, this matter is ready for adjudication. Service connection for prostate cancer is denied. The Veteran contends that he was exposed to herbicide agents, specifically Agent Orange (AO), while serving aboard ships in Vietnam that caused his prostate cancer. See NOD received 1/08/2014. The Veteran believes that his exposure to herbicide agents occurred while serving aboard the USS Kearsarge "when the ship's freshwater intakes sucked up AO contaminated water from Vietnam". See Form 9 received 5/02/2016 at page 1. Additionally, at the August 2019 Board hearing, he reported three trips off the ship, the last of which he touched down on the Vietnamese coastline while aboard a helicopter. See Hearing Transcript received 8/02/2019 at page 3. The Veteran also states that he was sent ashore to Vietnam's inland waterways ("brown waters") to perform his electronic technician duties. See 04/20/2009 and 04/09/2012 Statements in Support of Claim. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (listed in 38 C.F.R. § 3.309(e), and including prostate cancer) may be presumed to be service connected as due to exposure to herbicide agents in service if manifested in a veteran who had active military, naval, or air service in the Republic of Vietnam from on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam (including its waterways) from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The presumption has been extended to Veterans who served on Navy vessels in the territorial waters of the Republic of Vietnam including up to 12 nautical miles. See Procopio v. Wilkie, 913 F.3d 1371, 1373 (Fed. Cir. 2019) (holding that held that the statutory phrase "the Republic of Vietnam" included the 12 nautical mile territorial sea of that nation). This has been codified via 38 U.S.C. § 1116A. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. In the Board's February 2020 remand, the Board directed the U.S. Army Joint Services Records Research Center (JSRRC) or any other appropriate repository to verify whether the USS Kearsarge was within 12 nautical miles of Vietnam's territorial sea during the Veteran's service between August 1965 to August 1967, as well as to verify whether his service otherwise exposed him to herbicide agents. See BVA Decision received 2/04/2020 at page 8. A Records Research Response indicates that a professional researcher from the Veterans Benefits Administration (VBA), Compensation Service, Military Records Research Center, has completed comprehensive research on the Veteran's claimed herbicide exposure while serving aboard the USS KEARSARGE (CVS-33) from May 13, 1965 to November 14, 1965 and November 26, 1965 to August 14, 1967. This document indicates that the following sources were reviewed in an attempt to substantiate the Veteran's claimed exposure: The March 31, 1965 to September 30, 1965 Aviation Historical Summary, the 1966 and 1967 command history reports, and the January 1964 to December 1970 ship history submitted by the USS Kearsarge. See other received 5/06/2021. Additionally, an earlier Records Research Response indicates that, as sources, the RRC digital image repository, the 1966 command history for the USS KEARSARGE (CVS-33) were reviewed. The document indicates that the history reveals that the USS KEARSARGE departed for a Western Pacific (WESTPAC) deployment on June 9, 1966. The history further reveals that the USS KEARSARGE conducted Yankee Team Operations, off the coast of Vietnam, during the periods August 12-September 2, September 12-21, 1966, September 29-October 6, 1966, October 19-24, 1966, and November 6-23, 1966. The Veteran was aboard USS Kearsarge during the August 12-September 2, 1966 portion of the deployment. Deck logs show USS Kearsarge departed Sasebo, Japan August 9, 1966 with direct transit to Yankee Station, arriving at Yankee Station August 12, 1966. Deck logs document direct transit from Yankee Station to Subic Bay Philippines on September 4, 1966. The history did not document the USS KEARSARGE as in port, ship docked, transited inland waterways or that personnel stepped foot in the Republic of Vietnam. See other received 10/28/2021. In a June 2021, VA Memorandum indicates that exposure to herbicide agents cannot be conceded as the evidence of record does not show duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See VA Memo received 6/02/2021. The Logbooks for the relevant period were also associated with the file. They included a comprehensive ship location map that graphically pinpointed the location of the ship with relation to the Blue Waters. The map along with the other aforementioned evidence shows that the USS Kearsarge was not within 12-nautical miles of the Republic of Vietnam. See Logbooks received 5/26/2020. The Board has considered "relevant guidance" from VBA. Chavis v. McDonough, 34 Vet. App. 1, 18 (2021). In this regard, it appears from records obtained and the research memorandums added to the file in response to the Board's 2020 remand directives that the Veteran's relevant military history facts, such as his duty on the USS Kearsarge, the time periods when his aboard this ship, and the ship's locations during the times he was aboard were considered. However, ultimately, both Records Research Response documents did not find evidence supporting/documenting that the Veteran was exposed to herbicide agents. The Board has considered all the relevant evidence of record including the Veteran's lay testimony that he was in a helicopter that landed in Vietnam, and his reports of leaving the ship to fix other ships. See Hearing Transcript received 8/02/2019 at page 4. However, the Board finds the Veteran's statements are unreliable, unfortunately due to other service-connected disabilities such as that Veteran's cerebrovascular accident, which has been rated as 100 percent disabling since August 2007. For example, in an April 2009 statement, the Veteran stated, "I could have been carried to a land-based station for all I know. Because of my stroke, my memory is impaired." See VA 21-4138 Statement in Support of Claim received 4/22/2009 at page 1. When looking at the totality of the relevant evidence, it does not tend to show exposure to herbicide agents or Blue Water status. The preponderance of the competent and credible evidence, in this case, available military records, to include history provided by professional researchers, are more probative and reliable. Therefore, presumptive service connection for prostate cancer on the basis of exposure to herbicide agents is denied. Additionally, the Veteran has not put forth, nor does the evidence of record raise, an alternate theory of entitlement to service connection, e.g., direct service connection. That said, the Board has considered it but finds that it is not applicable since the Veteran was diagnosed with prostate cancer in July 2006, nearly 40 years after service. See Medical Treatment Record received 3/23/2009 at page 19. (Continued on the next page) In sum, the preponderance of the competent and credible evidence does not tend to show duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. Therefore, service connection for prostate cancer is denied. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Dixon, 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.