Citation Nr: 21027476 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-29 340 DATE: May 5, 2021 ORDER Entitlement to service connection for prostate cancer is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's service on the USS Ranger in December 1972 is included in the ships offshore of Vietnam and within 12 nautical miles seaward of the southwestern demarcation line. 2. The Veteran's prostate cancer is related to his active service because of his presumptive exposure to herbicides and due to his documented offshore service in the Republic of Vietnam during the Vietnam War. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from January 1969 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board wishes to apologize to the Veteran for delay in the full adjudication of his claim. Service Connection The Veteran claims he is entitled to service connection for prostate cancer because it was caused by his exposure to herbicides, including Agent Orange, during his service on the USS Ranger in December 1972 when the ship sailed within 12 nautical miles from the shores of the Republic of Vietnam. It appears from the record that the Veteran was assigned to Attack Squadron (ATKRON) 113 from April 1972 to January 1972. ATKRON 113 was deployed to the Western Pacific (WESTPAC) and aboard the USS Ranger (CVA-61) from November 1972 to June 1973. This is the only issue on appeal. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303 (d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). As to herbicide exposure, 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 (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e) (emphasis added). 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). In an important case, the United States Court of Appeals for the Federal Circuit 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. Under the Blue Water Navy Vietnam Veterans Act of 2019, Congress codified Procopio and established that a Veteran who served offshore of the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f). The Act detailed that a location can be considered as "offshore of Vietnam" if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia. The Act provides various intersecting points used in determining the demarcation line. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to service incurrence based on the presumptions found at 38 C.F.R. §§ 3.307, 3.309 (e) and 38 C.F.R. § 1116, the record shows the Veteran being diagnosed with prostate cancer. See January 2018 Primary Care Note. To be entitled to presumptive service connection the Veteran must have service in the Republic of Vietnam or offshore of Vietnam. The question for the Board is whether the USS Ranger sailed within 12 nautical miles seaward of the southwestern demarcation line at any point while the Veteran was stationed aboard. A review of the evidence of record and ship deck logs show that the USS Ranger sailed within 12 nautical miles of the southwestern demarcation line on December 9, 1972. The USS Ranger Deck Log appear to show that the vessel was positioned at 10-52 N latitude and 109-4.5 E longitude on December 9, 1972. See Logbooks of the U.S. Navy Ships and Stations, Ranger (CVA-61) December 1972, at page 18, https://catalog.archives.gov/id/40477307. The closest intersecting point listed under the Act is positioned at 9-58 N latitude and 109-5 E longitude at Hon Hai Islet. As such, the Board finds that the Veteran was offshore of Vietnam because the December 9, 1972 USS Ranger location was not more than 12 nautical miles seaward of the southwest demarcation line of the waters of Vietnam and Cambodia. Therefore, the Veteran served offshore of the Republic of Vietnam and is presumed to have been exposed to an herbicide agent. Accordingly, the Board finds that the Veteran meets the criteria for service connection for prostate cancer because it is a presumptive disorder. See 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Cochran, 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.