Citation Nr: 21027253 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-05 464 DATE: May 5, 2021 ORDER Service connection prostate cancer due, to include due to exposure to herbicide agents, is denied. Service connection for chronic lymphocytic leukemia, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record does not indicate that the Veteran was exposed to herbicide agents. 2. The Veteran did not set foot in the Republic of Vietnam and did not serve on a ship that operated in its inland waterways or its 12 nautical mile territorial sea during his service in the Vietnam era. 3. The Veteran's current prostate cancer disability was not incurred during his period of active service; any current prostate cancer is unrelated to service. 4. The Veteran's current chronic lymphocytic leukemia disability was not incurred during his period of active service; any current chronic lymphocytic leukemia is unrelated to service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.2., 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for chronic lymphocytic leukemia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1968 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2013, May 2014, January 2015, and September 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board of Veterans' Appeals (Board) in September 2018. At that time, the Board denied entitlement to service connection for prostate cancer and chronic lymphocytic leukemia. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a joint motion for partial remand (JMPR) that vacated the Board's decision to the extent that it denied service connection for prostate cancer and chronic lymphocytic leukemia. The Board remanded this matter for additional development in light of the JMPR, in January 2020. Service Connection 1. Entitlement to service connection prostate cancer due to exposure to herbicide agents 2. Entitlement to service connection for chronic lymphocytic leukemia to include as due to exposure to herbicide agents The Veteran contends that he was exposed to Agent Orange during his time in the Navy. Specifically, he contends that he was on the USS Enterprise for 18 months and that the ship had spent years off the Vietnam Coast at Yankee Station where water from the South China Sea was regularly used and that one of the missions of the USS Enterprise was to defoliate Vietnam. See Veteran's statement received May 23, 2014. The Veteran clarifies that he was not on the USS Enterprise at the time it was offshore in Vietnam, but he believes there were residuals of Agent Orange aboard the ship. See Veteran's statement received May 22, 2014. The Veteran further contends that he was exposed to Agent Orange and other defoliants at the Clark Air Force Base and Subic Bay in the Philippines; and during stops in Okinawa, Japan and Guam. See May 23, 2014 statement and July 2014 statement. Additionally, he states that he spent many days in transit on C130 cargo aircraft which were used to carry Agent Orange and other defoliants. See id.; December 2014 statement. He also contends that as an airplane technician, he worked on aircrafts, which may have exposed him to Agent Orange. See September 2017 statement. A Veteran who, during active military service, served in the Republic of Vietnam between January 1962 and May 1975 shall be presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307, 3.309. However, VA has determined that the presumption of Agent Orange exposure for veterans who 'served in the Republic of Vietnam' is limited to Veterans who served on or visited the Vietnamese landmass or its inland waterways, and does not apply to veterans who served exclusively offshore in ocean-going ships, i.e., the 'blue water' Navy. See 38 C.F.R. § 3.313(a); VAOPGCPREC 27-97 (Mere service on a deep-water naval vessel in waters off the shore of the Republic of Vietnam does not constitute 'Service in the Republic of Vietnam' for purposes of 38 U.S.C. § 101 (29)(A)); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's statutory interpretation excluding the 'blue water' Navy from presumptive herbicide exposure). On January 29, 2019, the Federal Circuit issued an en banc decision in Procopio v. Wilkie, reversing its prior determination that VA's interpretation of the statute and regulation was reasonable. Instead, the Court held that the statutory phrase "the Republic of Vietnam" included the 12 nautical mile territorial sea of that nation. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). By extension, the presumption of herbicide agent exposure extends to those veterans with service in the territorial seas of the Republic of Vietnam. Veterans exposed to Agent Orange or other listed herbicide agents are presumed service-connected for certain conditions, including prostate cancer and chronic lymphocytic leukemia, even if there is no record of such disease during service. 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307(a)(6), 3.309(e). To qualify for entitlement to service connection on a presumptive basis, the disability must become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The U.S. Congress subsequently enacted legislation that created 38U.S.C. §1116A, providing, in part, for a presumption of herbicide agent exposure for veterans who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. §1116A(a)(b). The Veteran has current diagnoses of prostate cancer and chronic lymphocytic leukemia. See May 2014 private treatment record. As such, the competent evidence supports the first element of service connection. Service records show that that the Veteran served on the USS Enterprise, stopped in the Naval Hospital in Subic Bay, and worked as an electrician. See personnel records and service treatment records. The Veteran does not contend, and the record does not indicate that he was ashore in the Republic of Vietnam or docked in a Vietnamese port during service. There is also no evidence showing that the Veteran traversed brown water areas while aboard the USS Enterprise. The claims file contains a January 2015 Administrative Decision, reflecting an August 2014 formal finding, which determined that the information required to corroborate herbicide exposure during service in the following locations, as described by the Veteran: USS Enterprise, the Philippines, Japan, Guam, and residual exposure from aircraft exposure is insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. Thus, exposure to herbicide agents cannot be presumed. The Board notes that the Joint Services Records Research Center, following review of numerous official military documents, ships histories, deck logs, and other sources of information related to Navy and Coast Guard ships and the use of tactical herbicide agents, has not been able to document or verify that any shipboard veteran was exposed to herbicide agents based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. In a February 2021 VA Memorandum, it was determined exposure to herbicide agents cannot be conceded as the evidence of record does not show the Veteran duty or visitation in Vietnam, or its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. In support of this memorandum, the file reflects that a professional research from Veterans Benefits Administration Compensation Service's Military Records Research Center completed comprehensive research on the Veteran's claimed exposure event, claiming herbicide exposure while serving aboard the USS Enterprise. The Veteran served onboard the USS Enterprise from June 1971 to July 1971, and February 1972 to July 1972. The file reflects that the researcher reviewed command history reports and deck logs from these periods for the USS Enterprise's location which were then used to plot out the ship's location. However, for the period noted above, the USS Enterprise did not anchor or dock in a qualifying bay/harbor or travel along inland waterways or territorial offshore waters (12 nautical mile territorial sea) of the Republic of Vietnam. This competent, probative, and credible evidence tends to weigh against a finding that the Veteran served within the 12 nautical mile territorial sea of the Republic of Vietnam. As such, presumptive service connection is not for application. Regarding the Veteran's assertions of exposure at Clark Air Force Base and Subic Bay, Philippines, the applicable Department of Defense (DoD) list does not indicate that herbicide agents were used or stored in Guam, Clark Air Force Base, or Subic Bay, Philippines. See Herbicide Tests and Storage Outside the U.S., available at www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/outside-vietnam.asp. While the Veteran has associated his prostate cancer and chronic lymphocytic leukemia to Agent Orange exposure, his opinion is not afforded significant probative value absent corroborating scientific or service record evidence. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (stating that a layperson's assertions indicating exposure to gases or chemicals during service were not sufficient evidence alone to establish that such an event actually occurred during service). In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim that he was exposed to herbicide agents while in service and therefore he cannot be presumed to be service-connected for prostate cancer and chronic lymphocytic leukemia under 38 C.F.R. § 3.309(e). The availability of presumptive service connection for a disability based on exposure to herbicide agents does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Veteran does not contend, and the evidence of record does not show, complaints, diagnosis, or treatment for prostate cancer and/or chronic lymphocytic leukemia during service. Further, as leukemia is considered a chronic disease under 38 C.F.R. § 3.309(a), service connection may be granted on a presumptive basis if this condition manifested to a compensable degree (severe enough to be evaluated at least 10 percent disabling) within one year after military discharge. 38 C.F.R. §§ 3.307, 3.309(a). However, the evidence does not show that the Veteran was diagnosed with leukemia within a year of service. The earliest evidence of this condition is a 2014 private treatment records. Additionally, the evidence shows that the Veteran was also not diagnosed with prostate cancer until 2014 which is many years after separation from service. The Board acknowledges the Veteran's contention that his current prostate cancer was caused by exposure to herbicide agents, to include Agent Orange, during his period of active service. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). He is not competent to identify an herbicide agent as specified in 38 C.F.R. § 3.307(a)(6), as he does not have the requisite chemical knowledge. In this case, he has professed no specialized ability to detect herbicide agents in the environment, outside of labeled containers, and his assertions of exposure are essentially speculative. See Bardwell, 24 Vet. App. at 40 (holding that a non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting the veteran's lay assertion). The Veteran's lay statements alone are not sufficient to establish that exposure to herbicide agents actually occurred, and his assertions must be weighed against other evidence of record. Finally, the probative evidence of record does not establish that the Veteran had a malignant tumor within a year of his completion of service. As noted above, the Veteran was not diagnosed with prostate cancer until many years after separation from service. Additionally, the probative medical evidence does not establish a continuity of symptomatology for his prostate cancer. Accordingly, the provisions of presumptive service connection do not apply. See 38 C.F.R. § 3.303(b), (c). (Continued on the next page) Thus, the Board finds that the weight of the evidence is against a finding of service connection for prostate cancer and chronic lymphocytic leukemia, including as due to herbicide exposure. 38 C.F.R. § 3.303, 3.307, 3.309(e). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.