Citation Nr: 21023964 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-37 139 DATE: April 21, 2021 ORDER Service connection for residuals of prostate cancer, to include as a result of in service exposure to herbicide agents, is granted. FINDING OF FACT The Veteran has presumed herbicide agent exposure as a result of his service in the Republic of Vietnam and had been diagnosed with, and treated for, prostate cancer. CONCLUSION OF LAW The criteria for service connection for residuals of prostate cancer, to include as a result of in-service exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from March 1968 to December 1969, to include service aboard the U.S.S. Fox along the coast of the Republic of Vietnam. In May 2020, a hearing was held before a Veterans Law Judge who is no longer employed at the Board of Veterans’ Appeals (Board). See November 2020 notice letter to the Veteran. In a February 2021 written response, the Veteran indicated that he did not wish to appear at another Board hearing and asked that the Board consider the case on the evidence of record. Service Connection – Residuals of Prostate Cancer The Veteran seeks service connection for residuals of prostate cancer resulting from exposure to Agent Orange in service. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Further, the law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents. The law also provides a presumption of exposure to such agents for veterans who served in the Republic of Vietnam between January 1962 and May 1975, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). In these circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), which includes prostate cancer, if manifested to a compensable degree at any time after active service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). For purposes of applying the herbicide presumption, “service in Vietnam” includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that “Service in the Republic of Vietnam” also includes service on the landmass, inland waterways and in the territorial sea extending 12 nautical miles from the shores of that nation. Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). As a result, the presumption of exposure to herbicide agents extends to veterans who served within that area, and such veterans are entitled to presumptive service connection under 38 U.S.C. § 1116(f) that they “served in the Republic of Vietnam,” regardless of whether they had duty or visitation on the ground or in the inland waters of Vietnam. The Veteran’s VA treatment records confirm that he was diagnosed with, and treated for prostate cancer, in 2013. Thus, he would have residuals of prostate cancer (to some extent) during the period on appeal. As such, the current disability prong of his claim is met. The Board also finds that the Veteran’s service above the U.S.S. Fox constitutes service in the Republic of Vietnam. His service records show that he served on the U.S.S. Fox from September 1968 to December 1969. Further, he submitted a U.S.S. Fox ship log which clearly documented its anchoring in Da Nang Harbor, Republic of Vietnam on November 12, 1986. As such, the Board concludes that the U.S.S. Fox sailed within 12 nautical miles from the shores of the Republic of Vietnam. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As the Veteran served above the U.S.S. Fox when it was within 12 nautical miles from the shores of the Republic of Vietnam, the Board finds, in accordance with the Federal Circuit’s recent holding in Procopio, that he had service in Vietnam during the Vietnam War. Thus, the presumptions found at 38 C.F.R. §§ 3.307 and 3.309(e) apply to his appeal for service connection for residuals of prostate cancer. The criteria for service connection for this disability are met, and service connection for residuals of prostate cancer is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.