Citation Nr: 21069122 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 14-36 382 DATE: November 17, 2021 ORDER Entitlement to service connection for benign prostatic hypertrophy, to include as secondary to claimed herbicide agent exposure, is denied. Entitlement to an effective date prior to August 7, 2009, for the grant of service connection for chronic sinusitis is denied. FINDINGS OF FACT 1. The Veteran does not have "service in the Republic of Vietnam (Vietnam)," was not presumptively exposed to herbicide agents during service and was not actually exposed to herbicide agents during service. 2. The Veteran's currently diagnosed benign prostatic hypertrophy (BPH) was not incurred in service or otherwise related to it. 3. Unappealed February 1989 and August 1997 rating decisions that denied service connection for chronic sinusitis are final. 4. The Veteran's petition to reopen the service connection claim for chronic sinusitis was next received on August 7, 2009. 5. By a November 2014 rating decision, the RO effectuated a grant of service connection for chronic sinusitis, effective August 7, 2009. 6. There is no pending, unadjudicated petition to reopen the service connection claim for chronic sinusitis prior to August 7, 2009. CONCLUSIONS OF LAW 1. The criteria for service connection for BPH, to include as a result of claimed exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for the assignment of an effective date prior to August 7, 2009, for the award of service connection for chronic sinusitis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from January 2014 and November 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board remanded the claim for further development. The case has now returned for further appellate consideration. Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active-duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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 - the so-called "nexus" requirement. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The fact that a veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009). Service connection The Veteran asserts that he is entitled to service connection for a prostate disorder due to claimed exposure to herbicide agents during service. He asserts that while stationed aboard the U.S.S. Independence in 1972, the ship was docked in the Republic of Vietnam. Claimed In-Service Exposure to Herbicide Agents A veteran is presumed exposed to herbicide agent, including Agent Orange if he or she had active military, naval, or air service, in the Republic of Vietnam from January 9, 1962 through May 7, 1975, "unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc), the Federal Circuit held that service in Vietnam includes service on ships that operated within the territorial seas of Vietnam that extended 12 nautical miles from the shores of that nation. Congress implemented the Procopio holding in the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act). The Act added new section of the U.S. Code, 38 U.S.C. § 1116A, which reads that VA must treat a location as being "offshore" of Vietnam (and therefore falling within the presumption of herbicide agent exposure) "if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia." If a veteran was exposed to an herbicide agent, certain enumerated diseases, including prostate cancer, but not other non-cancerous prostate disorders, are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). The record in this case shows that the Veteran served with Fighter Squadron 33 (VF-33) from June 9, 1970 to March 8, 1974 and was stationed aboard the USS INDEPENDENCE (CVA-62) from September 16, 1971 to March 16, 1972. The Veteran does not assert, and the evidence does not show, that the Veteran had duty or visitation in Vietnam; rather, as noted above, he asserts that the ship was docked in Vietnam in 1972. The Board reviewed VA's Adjudication Procedure Manual that lists the ships that operated temporarily in Vietnam's inland waterways or those which docked to shore, and the USS Independence, on which the Veteran was stationed aboard, is not among them. Moreover, after having researched the Veteran's assertions, VA issued a July 2021 memorandum in which it determined that exposure to herbicide agents in service cannot be conceded in this case because there is no probative evidence showing that the Veteran had nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, or had duty or visitation in Vietnam or in its inland waterways. These findings were based on information gathered from a professional researcher associated with the Veterans Benefits Administration, Compensation Service, Military Records Research Center, who completed comprehensive research on the Veteran's claimed herbicide exposure while aboard the USS Independence. The file reflects that the researcher reviewed squadron command histories for the VF-33 and command history reports from those periods, but no evidence was located to support documentation of the claimed incident. Additionally, an article from Naval Aviation News, March to April 1999, indicates that the CVA-62, VF-33, was deployed to the North Atlantic/Mediterranean from September 16, 1971 to March 16, 1972, as relevant here. Having considered all evidence of record, to include the Veteran's contentions and statements, exposure to herbicide agents during service may not be presumed in this case. Accordingly, a claim for service connection as presumptively due to herbicide agent exposure is not for consideration here. The Board notes further that the Veteran is not diagnosed with prostate cancer; therefore, even if herbicide exposure had been presumed, the claim on a presumptive basis would still fail because he does not have a prostate disorder presumptively associated with such exposure. Lastly, the Veteran has not asserted, and the evidence does not show, that he had actual exposure to herbicide agents while in service. Prostate Disorder The medical evidence does confirm the presence of a current prostate disorder, diagnosed as BPH. However, the weight of the evidence is against finding that the Veteran's BPH had its onset during service or is otherwise related to it. Specifically, the Veteran's service treatment records show no prostate complaints, treatment, or symptoms in service or at the Veteran's separation examination in November 1987. Moreover, the first evidence of any prostate problems is a private medical record showing that the Veteran was diagnosed with BPH, status-post TURP, in July 2013. See VBMS entry dated March 26, 2015, Medical Treatment Record Non-Government. There are no signs or symptoms of a prostate disorder during the 26-year gap between service separation and his diagnosis of BPH. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). Additionally, there is no competent evidence of a medical nexus between the Veteran's BPH and his active service. In this regard, the Veteran has not presented or identified any probative evidence that relates his prostate disorder to his active-duty service. The Board has considered the Veteran's statements in support of his claim and acknowledges that he is competent to provide evidence regarding any prostate symptoms that he experiences first-hand. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, the Veteran is not shown to possess the requisite medical training to competently render a medical diagnosis or provide an etiology opinion regarding his BPH. In sum, service connection for a prostate disorder must be denied, and, as the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Earlier Effective Date Claim The Veteran seeks an effective date earlier than August 7, 2009, for the award of service connection for chronic sinusitis. He believes that the effective date should be dated the day he first filed a service connection claim for sinusitis in 1988. He indicated, on his February 2016 VA Form-9, that he did not know much about the VA system back then and that he should have disagreed with the decision in 1989. He emphasized that sinusitis has affected his life since he retired from the Navy in 1987. An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant's behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a). The instant case commenced prior to the March 2015 changes to 38 C.F.R. § 3.155, and as such, the former version of the regulation applies, recognizing both formal and informal communications in writing as a "claim." VA received the Veteran's original claim for sinusitis in September 1988, within one year of service separation, and the RO denied that claim in a February 1989 rating decision. The Veteran thereafter filed an application to reopen his claim of service connection for sinusitis in February 1997, which the RO denied in an August 1997 rating decision. The Veteran did not appeal either rating decision. A hard copy of the actual notice letters associated with the 1989 and 1997 rating decisions are not in the electronic claims file; however, in the "Remarks" section on Forms 21-8947 dated in March 1989 and August 1997 decisions, it was noted that a dictated letter detailing the disallowance was required pertaining to the September 23, 1988 and February 21, 1997 claims (that included sinusitis), respectively. It is presumed, in the absence of any clear evidence to the contrary, that the Veteran was provided with the appropriate notice regulations outlining the appeals process. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Moreover, the Veteran did not indicate that he did not receive the notice letters; rather he stated that he should have appealed the rating decisions, with the inference being that he did receive them. Regardless, his statements alone would be insufficient to rebut the presumption of regularity in the administrative process and do not provide a route for an earlier effective date. The Board concludes that the Veteran was notified of the February 1989 and August 1997 rating decisions that denied service connection for sinusitis. The Veteran did not appeal those decisions, and new and material evidence was not received within one year of their respective notifications. The February 1989 and August 1997 rating decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. Finality determinations contained within the prior final decisions that denied service connection for chronic sinusitis can only be addressed through a claim of CUE as to those decisions. See 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 3.104, 3.105, 20.1400 (2020). The Veteran in this case has not claimed CUE in those prior decisions. The Board finds no basis under the law to award an effective date earlier than August 7, 2009, for the grant of service connection for sinusitis. The relevant regulation provides that any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application, in this case, August 7, 2009. No formal or informal communication was received from the Veteran mentioning sinusitis and/or indicating an intent to apply for service connection for sinusitis between the issuance of the August 1997 rating decision (the date of the last final and binding decision denying claimed disability) and August 7, 2009 (the date of his most recent petition to reopen). Furthermore, the Veteran himself has not asserted that he submitted any correspondence during that time period reflecting such an intent. (Continued on the next page) In summary, the RO has already assigned the earliest possible effective date for its grant of the reopened sinusitis claim, which was determined to be August 7, 2009. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). The Board acknowledges the Veteran's stance that he was unaware of the VA regulations, to include his ability to disagree with a rating decision, after separating from service. However, the controlling statutes, regulations, and case law are all matters of public record. A claimant's ignorance of the law and/or his/her rights cannot be used as an excuse for failure to follow a promulgated regulation. Morris v. Derwinski, 1 Vet. App. 260 (1991), citing Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). The Board is grateful for the Veteran's military service, but the Board is bound by the laws governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). There is no legal basis upon which to award an earlier effective date. The appeal seeking entitlement to an effective date earlier than August 7, 2009, for the award of service connection for chronic sinusitis must be denied. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.