Citation Nr: 21072367 Decision Date: 12/03/21 Archive Date: 12/02/21 DOCKET NO. 15-19 020 DATE: December 3, 2021 ORDER Service connection for prostate cancer including residuals is denied. FINDINGS OF FACT 1. The Veteran was not shown to have had visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined under the Blue Water Navy Vietnam Veterans Act of 2019; thus, there is no presumption that he was exposed to herbicide agents while serving on active duty. 2. The Veteran's prostate cancer was not shown in service, was not manifested within a year following discharge from service or for many years thereafter, and has not been found to be etiologically related to service. CONCLUSION OF LAW The criteria for service connection for prostate cancer including residuals have not been met. 38 U.S.C. §§ 1101, 1110; 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 September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by the Agency of Original Jurisdiction (AOJ). In May 2018, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed by the Board; a transcript of the hearing is associated with the record and no additional hearing has been requested. See Correspondence dated April 2021. This matter was previously before the Board in July 2018 and most recently in May 2021 where it was remanded for additional evidentiary development. Service Connection 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 service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of at least 10 percent within one year following separation from service. 38 C.F.R. §§ 3.307, 3.309. Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, 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), 3.309(e). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), the U.S. Court of Appeals for the Federal Circuit held that veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements. Effective January 1, 2020, the Blue Water Navy Vietnam Veterans Act of 2019 (the Act) created new statutory requirements for the adjudications of certain claims based on veterans' herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. Basically, the Act extended the presumption of herbicide agent exposure, such as Agent Orange, to veterans who served in the offshore waters of the Republic of Vietnam between January 9, 1962, and May 7, 1975. Issue: Entitlement to service connection for residuals of prostate cancer. The Veteran asserts his prostate cancer including residuals was caused by exposure to smoke and fumes during a July 1967 fire while aboard the USS Forrestal. Alternatively, the Veteran contends USS Forrestal entered the territorial waters of the Republic of Vietnam and seeks service connection based on presumptive exposure to herbicide agents under the Act. See Appellant's Post-Remand Brief of November 2021. For the reasons explained below, service connection is not warranted. As a preliminary matter, the Board notes that development was accomplished to substantiate the Veteran's contention of being exposed to herbicide agents by virtue of serving on a ship that was in the territorial waters of Vietnam. However, exposure to herbicides is not conceded. In so finding, the Board relies on a January 2021 herbicide exposure verification memo that determined, "[e]xposure to herbicides cannot be conceded as the evidence of record does not show the Veteran had 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." See VA Memorandum dated January 2021. Additionally, the record shows a response from a professional researcher from the Records Research Center indicating that comprehensive research on the Veteran's "claimed herbicide exposure aboard the USS Forrestal (CVA-59) from 09/27/1966 07/15/1968" was completed. See Records Research Response. The record shows review of sources including 1966, 1967, 1968 command history reports for the USS Forrestal, deck logs, and ship locator including a map that showed locations of the ships while in the territorial waters of Republic of Vietnam. After review of the official documents, the researcher found no evidence to support documentation of the claimed incident/event. See Records Research Response. Consequently, the Board agrees with the findings of the professional researcher and does not concede exposure to herbicide agents. As such, presumptive service connection under 38 U.S.C. § 1116 is not warranted. While the Veteran has not established exposure to herbicide agents, the Board must still consider service connection on a direct basis, to include the Veteran's contention that prostate cancer was caused by smoke inhalation from a July 1967 fire while aboard the USS Forrestal. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With that said, however, the Board finds that the preponderance of the evidence is against the finding that the Veteran's prostate cancer began in service, or that the disability is otherwise related to service. The Veteran's private treatment records show the earliest notation of elevated prostate-specific antigen (PSA) levels was in 2010 with a negative prostate biopsy in April 2011. See Records from Iowa Clinic. In fact, a formal diagnosis was not made until January 2013, which is approximately 45 years after his separation from service. Nonetheless, to address the complex medical question of etiology, the Board remanded the matter in May 2021 to afford the Veteran a new VA examination. The Veteran was afforded a VA contract examination in September 2021. Based on personal examination of the Veteran and thorough review of all available evidence of record, the examiner opined that it is less likely than not that the Veteran's claimed residuals of prostate cancer was incurred in or caused by the claimed in-service injury, event, or illness. The examiner recorded the Veteran's report of current symptoms of erectile dysfunction, leakage, and decreased sensation of penis. The examiner added the Veteran underwent a prostatectomy in March 2013 and indicated the status of the disease as "Remission." The examiner noted review of the surgical pathology report of March 2013 which revealed no tumor identified. In the rationale, the examiner added the "Veteran does have residuals of prostate cancer; however, medical literature does not support that the cause of prostate cancer to be a result of exposure to smoke and hazardous fumes during the July 1967 fire aboard the U.S.S. Forrestal." Further, citing evidence based medical research, the examiner noted that research suggests risk factors for prostate cancer are age, ethnicity, family history and genetic factors, diet. See Prostate Cancer Disability Benefits Questionnaire (DBQ) and Medical Opinion dated September 2021. The Board assigns significant probative value to the September 2021 VA medical opinion. The VA opinion is based on a thorough and comprehensive review of the Veteran's claims file, consideration of lay evidence of record, and provide well-grounded rationale to support the examiner's conclusion. The examiner provides substantial reasoning and explanation as to why the Veteran's current residuals of prostate cancer is not etiologically related to service including smoke and fumes from a July 1967 fire aboard USS Forrestal. The opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Accordingly, the Board finds great probative value in the September 2021 VA opinion of record. Further, the Veteran has not submitted any medical opinion to the contrary. Additionally, as to presumptive service connection based on chronic disease, there is no persuasive evidence of record that shows prostate cancer manifested within one year of separation from the service or that symptoms of the diseases manifested to a compensable degree within a year of his discharge from service. See 38 C.F.R. §§ 3.303(b), 3.309. Accordingly, service connection on a presumptive basis has not been shown and therefore, not warranted. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Lastly, the Board recognizes the Veteran's assertions that the smoke and fumes during the fire caused his prostate cancer. Although the Veteran is certainly capable of describing the history in this case as well as his symptoms in and after service, as a layperson, without any demonstrated, specialized knowledge concerning the etiology of a disability, his allegations are not competent evidence of a medical nexus. Furthermore, the Veteran's assertions are outweighed by other probative evidence of record. There is no evidence no competent evidence even suggesting that his prostate cancer had onset in service or proximity to service. As pointed out above, the earliest finding of elevated PSA levels was not until 2010, which is approximately 42 years after separation from service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Accordingly, the Board assigns more weight to the medical evidence of record, including the September 2021 VA contract opinion provided by a medical professional. After weighing all the evidence, the Board observes that the objective medical evidence of record stands uncontradicted by any other evidence found in the record and is probative in determining whether the Veteran has substantiated his claim for service connection. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for prostate cancer including residuals. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A., 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.