Citation Nr: 21073648 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-49 245 DATE: December 9, 2021 ORDER Entitlement to service connection for residuals of prostate cancer is granted. REMANDED Entitlement to service connection for a right-hand disability is remanded. FINDINGS OF FACT 1. The Veteran's herbicides exposure is conceded with his naval service in offshore of Republic of Vietnam during the Vietnam era. 2. The Veteran has a diagnosis of prostate cancer, which became manifest after service to a degree of 10 percent or more. CONCLUSION OF LAW Resolving reasonable doubt, the criteria for service connection for prostate cancer, claimed as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021 the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. The Board notes that at the Veteran's July 2021 hearing, the Veteran's representative appeared to make a claim for an increased disability rating for the Veteran's service-connected left-hand disability. As a result, the issue of entitlement to a compensable rating for a left thumb fracture is referred to the agency of original jurisdiction (AOJ). Service Connection Laws and Regulations 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(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, such as prostate cancer, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as prostate cancer is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; Type II diabetes; Non-Hodgkin's lymphoma; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers; prostate cancer; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; malignant ganglioneuroma; and amyotrophic lateral sclerosis (ALS). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e), 3.313, 3.318. As noted above, the law provides that for claims based on the chronic effects of exposure to Agent Orange, presumptive service connection may be established for certain diseases, including ischemic heart disease, as specified above. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Regarding presumptive service connection for diseases associated with exposure to herbicide agents, it is warranted if a disease listed under § 3.309(e), with the exception of chloracne or other acneform disease, becomes manifest to a degree of 10 percent at any time after service. As opposed to the requirements for direct service connection, the disease need not manifest within the appellate period. The Blue Water Navy Vietnam Veterans Act of 2019 extends the existing presumption codified at 38 U.S.C. § 1116 to veterans who served "offshore of the Republic of Vietnam" during the Vietnam era. 38 U.S.C. § 1116A (a) (2020). "Offshore" is defined as a geographical area "not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting" eleven points of latitude and longitude listed. 38 U.S.C. § 1116A (d) (2020). The effective date of The Blue Water Navy Vietnam Veterans Act of 2019 was January 1, 2020. Factual Background and Analysis When affording the Veteran the benefit of doubt, the Board finds that service connection for prostate cancer on a presumptive basis is warranted. The Veteran contends that his prostate cancer is related to his exposure to Agent Orange during his service in Vietnam. Specifically, the Veteran claims that while stationed aboard the U.S.S. Mullinnix, he was a part of a flotilla of 5 ships that went in to Vietnam. He also contended that his ship did fire support on the Vietnam coastline. In October 2015, VA issued a Memorandum in which it found that based on verification research from the Joint Service Record Research Center (JSRRC) there was insufficient evidence to concede exposure to herbicides and that extended herbicide. However, in July 2020, VA issued a Memorandum in which it found that exposure to herbicides was conceded based on the Veteran's nautical service in the offshore nautical waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019. Parenthetically, the Board notes that in an August 2020 rating decision, the RO granted service connection for coronary artery disease on a presumptive basis due to herbicide exposure. As a result, when reasonable doubt is resolved in the Veteran's favor, this evidence is sufficient to corroborate the Veteran's reports of his presence in Vietnam during his period of foreign service and herbicide exposure is conceded. The medical evidence of record shows that the Veteran has a current diagnosis of residuals of prostate cancer. The manifestations of his disability are consistent with at least a 10 percent evaluation under the appropriate diagnostic codes. 38 C.F.R. § 4.119, Diagnostic Codes 7528. As a result, the requirements of § 3.307(a) (6) are met and presumptive service connection of ischemic heart disease is warranted on a presumptive basis. In sum, there is conceded exposure to herbicides, and there is evidence that he has a current diagnosis of residuals of prostate cancer. As a result, service connection for prostate cancer on a presumptive basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.309(e); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claim remaining on appeal. The Board notes that VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the Veteran's claim for service connection for a right-hand disability, at the July 2021 hearing, the Veteran indicated that his current right-hand disability was incurred during his service as he used his right hand frequently as a radioman during service. He also testified that his service-connected left-hand disability caused or aggravated his right-hand disability due to overuse of the right hand. Notably, the Veteran has yet to undergo a VA examination regarding the etiology of his right-hand disability. Accordingly, the Board finds that a VA examination is needed to determine whether the Veteran has a current right-hand disability that is related to service to include as being caused or aggravated by service-connected left-hand disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c) (4). The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Schedule the Veteran for a VA examination to determine the etiology of the claimed right-hand disability. Based on a review of the record and an examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current right-hand disability that is related to any incident of the Veteran's service. The examiner should also opine as to whether if it is at least as likely as not (at least a 50 percent probability) that the Veteran has current right-hand disability that is caused or aggravated by a service-connected left-hand disability. If the examiner finds that the Veteran has a right-hand disability that has been permanently aggravated/worsened by a service-connected left-hand disability, to the extent feasible, the degree of worsening should be identified. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.