Citation Nr: 21041499 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 190610-10080 DATE: July 9, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure, is granted. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, is granted. FINDINGS OF FACT 1. The Veteran has a current disability of prostate cancer. 2. The Veteran has a current disability of diabetes mellitus. 3. In a June 2021 Memorandum, the Department of Veterans Affairs conceded exposure to herbicide agents 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. 4. The Veteran's prostate cancer, including any associated residuals, is presumed due to exposure to herbicide agents during service. 5. The Veteran's diabetes mellitus, including any associated residuals, is presumed due to exposure to herbicide agents during service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On July 1, 2019, the Secretary of Veterans Affairs directed the Board of Veterans' Appeals (Board) to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. The Act creates new statutory requirements for the adjudications of certain claims based on herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975; in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971; and in Thailand during the period from January 9, 1962, to May 7, 1975. In October 2019, the Board found that the issues of entitlement to service connection for prostate cancer and diabetes mellitus, each, may be affected by the Act and the issues were stayed. As the stay has since been lifted, adjudication of stayed cases has resumed in accordance with the Board's docket order. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Veteran chose to participate in VA's test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. The Veteran served on active duty in the United States Navy from June 1966 to June 1988. On March 26, 2018, VA received the Veteran's opt-in selection of a higher-level review of the appeal through RAMP. In a March 2019 rating decision, the higher-level reviewer denied the Veteran's appeal. In June 2019, the Veteran requested a direct review of his appeal by the Board. Consequently, this case comes before the Board of Veterans' Appeals (Board) on appeal from the March 2019 rating decision by the Department of Veterans Affairs (VA) Veterans Benefits Administration Regional Office (RO). As the current appeal stems from the Veteran's initial selection of the higher-level review, in which he acknowledged that his review will be based upon the evidence submitted to VA as of the date of that election, only evidence through the date of the March 2018 opt-in will be considered. VA will not seek additional evidence on behalf of the Veteran as part of the higher-level review. The Board acknowledges that the Veteran has requested an informal conference in conjunction with his higher-level review request. However, because the Veteran subsequently elected direct review by a Veterans Law Judge in his Decision Review Request: Board Appeal (Notice of Disagreement), the Board finds that the Veteran is not entitled to an informal conference and will proceed with adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. §§ 20.900(c); 38 U.S.C. § § 7107(a)(2). Service Connection 1. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure, 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide agent exposure, Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. Establishing service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). If a Veteran was exposed to herbicide agents during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of the disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e). A Veteran, who during active service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any herbicide agent during service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran contends that prostate cancer and diabetes mellitus are the result of herbicide agent exposure while stationed in Vietnam. VA examinations dated in July 2015 confirm that the Veteran has a current diagnosis of prostate cancer and diabetes mellitus. In a June 2021 Memorandum, the Department of Veterans Affairs conceded exposure to herbicide agents 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. Accordingly, service connection for prostate cancer and service connection for diabetes mellitus is warranted on a presumptive basis due to herbicide agent exposure. Resolving all reasonable doubt in the Veteran's favor, service connection for prostate cancer and service connection for diabetes mellitus, each, presumed due to herbicide agent exposure is granted. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309. T. V. CASEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.