Citation Nr: 21013716 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 19-00 866 DATE: March 10, 2021 ORDER Service connection for prostate cancer is denied. Service connection for the Veteran's cause of death is denied.   FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam as defined by VA for the purpose of presumptive exposure to herbicides and was not exposed to herbicides during active duty. 2. The Veteran’s prostate cancer is not related to service. 3. The Veteran’s cause of death is not related to a disability incurred during or caused by service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1116, 1116A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for the Veteran’s cause of death are not met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September1968to June 1970. He died in July 2016 and the appellant is his surviving spouse. The case is on appeal from a February 2016 rating decision. In a January 2020 decision, the Board reopened a previously denied claim of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), and denied the claim on the merits. At that time, the Board also remanded the prostate cancer and cause of death claims for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for prostate cancer. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38C.F.R. § 3.309(e). VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. See 38U.S.C. § 1116(a)(3); 38C.F.R. § 3.307(a)(6)(iii). This include Veterans who served within the 12-nautical-mile limit of Vietnam’s territorial sea pursuant to 38 U.S.C. § 1116A of the Blue Water Navy Vietnam Veteran’s Act (BWN Act) of 2019. 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. 38U.S.C. §5107(b); 38C.F.R. §3.102; Gilbert v. Derwinski,1 Vet. App. 49 (1990). Analysis The appellant contends that the Veteran’s prostate cancer was the result of the Veteran’s exposure to herbicide agents, such as Agent Orange, during his active duty service aboard the USS Enterprise with service off the coast of Vietnam. Service personnel records (SPRs) show the Veteran served in the U.S. Navy and aboard the USS Enterprise from December 1968 to June 1970. In the January 2020 remand, the Board noted that a June 2012 response from the National Personnel Records Center (NPRC), indicates that the Veteran served aboard the USS Enterprise which was “in the official waters of the Republic of Vietnam from March 30, 1969 to April 18, 1969, and from May 22, 1969 to May 29, 1969. Nevertheless, the Board noted that the evidence at that time was not specific nor sufficient to determine whether the USS Enterprise traveled within the 12-nautical miles off the shore of Vietnam pursuant to 38 U.S.C. § 1116A. Pursuant to the Board’s January 2020 remand, the USS Enterprise deck logs dating from December 1968 to June 1970 were obtained and associated with the Veteran’s claims file. In addition, a Records Research Response pertaining to the requested investigation was associated with the claims file in November 2020. The response indicates that a professional researcher from the Veterans Benefits Administration, Compensation Service, Records Research Center, completed a comprehensive research on the Veteran’s claimed herbicide exposure while serving aboard the USS Enterprise from December 27, 1968 to June 25, 1970. The report indicates that upon review of the Command Histories for the USS Enterprise from 1968 to 1970 in an effort to assist the appellant in substantiating the present claim, there is no evidence to that documents that the USS Enterprise docked or anchored in a qualifying bay or harbor in Vietnam, or that the USS Enterprise traveled along inland waterway, or within twelve nautical miles off the cost if the Republic of Vietnam during the Veteran’s service. The report indicates that the USS Enterprise (CVAN-65) conducted SPECOPS on Yankee Station in the Gulf of Tonkin from March 31, 1969 to April 16, 1969, and from May 31, 1969 to June 16, 1969. As noted, a review of logbook data from USS Enterprise (CVAN-65) reveal that the while the Yankee Station was in the Gulf of Tonkin, the evidence of record does not show the Veteran had duty or visitation in the Republic of Vietnam, or on its inland waterways, or within twelve nautical miles off the coast of Vietnam as defined in the BWN Act of 2019. See November 24, 2020 Herbicide Exposure Verification Memo. Thus, the evidence and additional development in connection with this claim does not show that the ship travel within twelve nautical miles of Vietnam during the Veteran’s service, that is, between December 1968 to June 1970. As such, exposure to herbicide agents is not presumed. Additionally, the Veteran’s service records do not provide evidence of his physical presence in Vietnam. In fact, the Veteran never alleged, nor the appellant is currently alleging that he was exposed to herbicides as a result of physical presence in Vietnam. While the Veteran believed, or the appellant alleges, that he was perhaps exposed to herbicide agents during service aboard the USS Enterprise, a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Thus, exposure to herbicides agents is not shown on a facts found basis. As to a theory of direct service connection without exposure to herbicide agents presumed or established, the record reflects the Veteran was diagnosed during his lifetime prostate cancer. This is also listed as one of the Veteran’s cause of death. As such, the current disability element of the claim has been established. The Veteran’s service treatment records (STRs), including his separation examination, do not demonstrate complaints of, treatment for, or a diagnosis of prostate cancer. Additionally, the Veteran did not assert during his lifetime that his prostate cancer had its onset during active duty or had been continuously present since his discharge from active duty. As noted, the primary theory has been that the Veteran attributed his disability to his exposure to Agent Orange. The record shows that the Veteran’s prostate cancer was not diagnosed until August 2009, approximately 39 years following his discharge from active duty. As such, an in-service event or injury has not been established for service connection purposes and there is not an indication that the condition is related to service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the appellant’s claim of service connection for prostate cancer, to include as due to exposure to herbicides, and service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for the Veteran’s cause of death. Legal Criteria A surviving spouse of a qualifying veteran who died as a result of a service-connected disability is entitled to receive Dependency and Indemnity Compensation (DIC). 38 U.S.C. § 1310; 38 C.F.R. §§ 3.5(a), 3.312. The death of a Veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a). Issues involved in a claim for DIC, such as service connection for the cause of death, are decided without regard to any prior disposition of those issues during the Veteran’s lifetime. 38 C.F.R. § 20.1106. Analysis The appellant seeks service connection for the cause of the Veteran’s death. In support of her claim, the appellant asserts that as the Veteran died of prostate cancer as a result of his exposure to herbicides agents during service in Vietnam, service connection for the Veteran’s death must be warranted. See February 2, 2018 statement in support of claim. A February 2016 Certificate of Death lists aspiration pneumonia, malignant spinal cord compression, and metastatic prostate cancer as the Veteran’s causes of death. See Certificate of Death received in February 2018. First, as detailed above, service connection for prostate cancer is not warranted. Thus, even though the condition was a cause of the Veteran’s death, it is not related to service. Thus, the claim fails on the primary theory of entitlement. The Board also notes that the Veteran was not service connected for aspiration pneumonia or malignant spinal cord compression. There is also no indication that those conditions were related to service. Finally, the Veteran was not service connected for any condition and not other condition is evident that may have contributed to the Veteran’s death that also may have been related to service. As such, in consideration of the evidence, the Board finds that the cause of the Veteran’s death is not related to his military service. The preponderance of the evidence is against the claim and the reasonable doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for the cause of death is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.