Citation Nr: 21012733 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-06 797A DATE: March 5, 2021 ORDER Entitlement to service connection for prostate cancer, is granted. FINDING OF FACT 1. The Veteran was exposed to herbicide agents, including Agent Orange, during service. 2. The Veteran served on active duty along the shores of the Republic of Vietnam and had boots on the ground in the Da Nang airfield. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Navy from February 1966 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement (NOD) in April 2012. In January 2015, the RO issued a Statement of the Case (SOC) and in March 2015 the Veteran filed a timely Form 9 and requested a hearing before the Board. In October 2018, the Veteran was afforded a hearing before the undersigned Veterans’ Law Judge. In April 2019, the Board remanded this matter for further development to by the RO. In December 2020, the RO issued a Supplemental Statement of the Case (SSOC). This matter is now properly before the Board. SERVICE CONNECTION Service connection is warranted where the evidence of record establishes that an injury or disease resulting in a disability was incurred in the line of duty during active military service or, if an injury or disease pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may also be granted for any disease diagnosed after military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Even if a Veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Entitlement to service connection for prostate cancer. The Veteran contends that he is entitled to service connection for prostate cancer. The Veteran worked as a jet mechanic and a plank captain with VA35 in the United States Navy. The Veteran was stationed aboard the USS Enterprise in 1968 and 1969 off the coast of the Republic of Vietnam. VA has defined offshore waters as the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence. VA determined that Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and, Ganh Rai Bay were considered to be offshore waters of the Republic of Vietnam. VA Adjudication Procedures Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H.2. VA maintains a list of US Navy and Coast Guard ships associated with military service in Vietnam that addresses whether the ship was in the inland or offshore waterways and had possible exposure to Agent Orange or other herbicides. See Vietnam Era Navy Ship Agent Orange Exposure Development Site, http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm (updated September 4, 2018). The records recovered by the RO indicated that the USS enterprise, which the Veteran was stationed on, was stationed offshore the Republic of Vietnam. The Veteran was attached to a unit, attack squadron 35, which served aboard the USS Enterprise which was in the official waters of the Republic of Vietnam. According to the service data report obtained by the RO. The Blue Water Navy Ship Locator Dashboard was also obtained by the RO. The record indicates that there are several dates where there is no deck log available. These missing deck logs are during the time period the Veteran was stationed off the coast of the Republic of Vietnam. In July 2007, the Veteran was diagnosed prostate cancer. The Veteran received treatment and had surgery in 2007. The medical records from the VA’s private physician as well as the VA medical records obtain confirm that the Veteran does have a current diagnosis of prostate cancer. In an October 2018 hearing before the undersigned VLJ, the Veteran testified that he was with the VA35 flight crew. The Veteran testified that in 1968 he was sent to Da Nang airfield, his plane had a mishap and had to land there. The Veteran testified that he did step foot in Vietnam. The Veteran has also provided written lay statements noting that he did step foot in Vietnam for 45 hours to complete a repair on a plane that had to do an emergency landing in Da Nang airfield. The Veteran’s testimony at the October 2018 hearing is consistent with his April 2012 written statement and his March 2020 written statement. The Board finds the Veteran’s testimony to be competent, credible and highly probative. The Board acknowledges that there has not been any clear confirmation of the Veteran’s presence with boots on the ground or within 12 nautical miles of the Republic of Vietnam. However, the Board finds that the missing deck logs may contain information that the Veteran was indeed within 12 nautical miles and or with boots on the ground in the Republic of Vietnam. The Veteran’s military occupation specialty was a jet plane mechanic. The Veteran’s military occupation coupled with the circumstances surrounding his mission offshore of the Republic of Vietnam and his testimony before the Board provides support for the Veteran’s claim that he had boots on the ground. The Board finds the evidence of record to be in equipoise. Based on the evidence of record, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran did have boots on the ground in the Republic of Vietnam during the applicable presumptive period and is therefore presumed to have been exposed to herbicides. 38 C.F.R. § 3.307(a)(6)(iii). Thus, an in-service event, injury or disease, specifically herbicide exposure, has been shown for the purposes of presumptive service connection. The Veteran does have a current diagnosis of prostate cancer, one of the diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e); see 78 Fed. Reg. 54763 (Sept. 6, 2013). (Continued on the next page)   There is no evidence of record that would rebut the presumption that the Veteran’s diagnosed prostate cancer is related to his presumed exposure to herbicide agents while serving in the United States Navy off the shores of Vietnam and when he had boots on the ground in Vietnam. 38 C.F.R. § 3.307(d). As such, the Board concludes that criteria for entitlement to service connection have been met. 38 C.F.R. § 3.309(e). B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.