Citation Nr: 21029758 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 17-29 677 DATE: May 14, 2021 ORDER Service connection for residuals of prostate cancer, status post prostatectomy, is granted. Service connection for diabetes mellitus, type II, is granted. Service connection for ischemic heart disease, diagnosed as coronary artery disease and status post myocardial infarction, is granted. FINDINGS OF FACT 1. Exposure to herbicide agents is conceded based on the Veteran's nautical service in eligible offshore waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. 2. The Veteran's prostate cancer, type II diabetes mellitus, and ischemic heart disease have manifested to a degree of 10 percent or more and are presumed to be related to service as a result of his exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for residuals of prostate cancer, status post prostatectomy, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 1116A; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 1116A; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for an award of service connection for ischemic heart disease, diagnosed as coronary artery disease and status post myocardial infarction, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 1116A; 38 C.F.R. §§ 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 September 1963 to September 1967. His decorations include the Vietnam Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In April 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that the Veteran's claim for service connection for prostate cancer was previously denied by the RO in a June 2003 rating decision and an October 2011 simplified notice letter/rating decision, which also denied his claim for service connection for a heart condition. Generally, once a claim is finally denied, it may be reopened only upon the submission of new and material evidence. However, after these rating decisions were entered, official service department records were received that had existed but had not been associated with the claims file. The newly received records consist of service personnel records and deck logs, which are relevant because they pertain to the Veteran's presumed exposure to herbicide agents in the waters offshore of the Republic of Vietnam. Accordingly, the claims for service connection for prostate cancer and a heart condition will be reconsidered on the merits, without regard to the prior adjudications. See 38 C.F.R. § 3.156(c)(i). 1. Service connection for residuals of prostate cancer, status post prostatectomy, is granted. 2. Service connection for diabetes mellitus, type II, is granted. 3. Service connection for ischemic heart disease, diagnosed as coronary artery disease and status post myocardial infarction, is granted. The Veteran asserts that his prostate cancer, diabetes, and coronary artery disease are related to his exposure to herbicide agents during service while aboard the USS Kitty Hawk (CVA-63). For purposes of service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service connection, a veteran who, during active military, naval, or air service, served in 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 during such service to an herbicide agent and may be presumed to have been exposed during such service to any other chemical compound in 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. § 1113, 1116; 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service within the 12 nautical mile territorial sea of Vietnam. Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (codified at 38 U.S.C. § 1116A); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). If a veteran was exposed to herbicide agents during active military, naval, or air service and the requirements of 38 C.F.R. § 3.307(a) are met, certain diseases shall be service-connected, even if there is no record of such disease during service, if they manifest to a degree of 10 percent or more at any time after service. See 38 C.F.R. § 3.307(a)(6)(ii). The enumerated diseases include Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), prostate cancer; and 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). 38 C.F.R. § 3.309(e). In this case, while the current appeal was pending, VA obtained information regarding the various locations of the USS Kitty Hawk (CVA-63) during the Veteran's service. As a result, in a February 2020 VA memorandum, the RO determined that "[e]xposure to herbicides is conceded based on the Veteran's nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23." It is therefore presumed that he was exposed to an herbicide agent under 38 C.F.R. § 3.307(a)(6). Furthermore, the Veteran has been diagnosed with prostate cancer, type II diabetes mellitus, and ischemic heart disease. See e.g., September 2014 VA examinations (noting diagnoses of prostate cancer, status post prostatectomy; acute, subacute, or old MI, coronary artery disease; and diabetes mellitus type II). Given that the Veteran underwent a prostatectomy for his prostate cancer, has been prescribed Metformin for his diabetes, and underwent cardiac stenting and has a history of myocardial infarction, it is clear that these disabilities have all been manifested to a degree of at least 10 percent after he was discharged from service. It follows that, under the provisions of 38 C.F.R. § 3.309(e), the Veteran's prostate cancer, type II diabetes mellitus, and ischemic heart disease are presumed to have been caused by his exposure to herbicides. The Board finds no evidence in the record sufficient to rebut this presumption. Accordingly, service connection is warranted for prostate cancer, diabetes, and ischemic heart disease on a presumptive basis. The appeal is granted in full. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Gielow, 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.