Citation Nr: A23007893 Decision Date: 04/24/23 Archive Date: 04/24/23 DOCKET NO. 220604-248374 DATE: April 24, 2023 ORDER Entitlement to service connection for prostate cancer is granted. FINDINGS OF FACT 1. In-service exposure to an herbicide agent 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. 2. Prostate cancer is among the diseases which the Department of Veteran's Affairs presumed to be caused by exposure to an herbicide agent. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from June 1965 to September 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2022 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the AOJ's determination, and the present appeal ensued. In May 2022 the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, and any evidence submitted by the Veteran or his representation at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). In January 2023, the Veteran testified at a Board hearing conducted by a Veterans Law Judge (VLJ) via teleconferencing equipment. A transcript of the hearing is associated with the electronic claims file. By way of history, the Veteran's claim began in the legacy system and was initially denied in the October 2018 rating decision. In November 2018 the Veteran filed a request for reconsideration of the claim. When a claimant requests reconsideration of a rating decision within one year of issuance of such, the rating decision does not become final, and the AOJ has the duty to readjudicate the initial claim on the merits. After doing so, the latter rating decision (downstream from the reconsideration request) subsumed the former rating decision. In the view of the above, the Board concludes that the Veteran's appealed issue seeking to establish service connection for prostate cancer steams from the Veteran's initial claim (filed August 2018), and the April 2022 rating decision has subsumed the October 2018 rating decision regarding the Veteran's initial claim. Accordingly, the Board may address these matters on the merits without discussion of VA's receipt of new and relevant evidence. 1. Entitlement to service connection for prostate cancer Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). VA regulations provide that certain diseases, to include prostate cancer, to be associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e). A Veteran who, during active 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, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). 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 or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 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; Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). Analysis The record unambiguously reflects that the Veteran has a diagnosis of prostate cancer during the appeal period, and VA presumes that this disease is caused by an in-service exposure to an herbicide agent. Throughout the pendency of the Veteran's claim, he has maintained that during his Naval service on the U.S.S. Ware, he was within 12 nautical miles of the Republic of Vietnam, and therefore, presumed to have been exposed to an herbicide agent. The Veteran's personnel records show that he served aboard the U.S.S. Charles R Ware from February 1967 to September 1967. The deck logs of the ship corresponding to the period of the Veteran's service aboard the ship have been obtained by the AOJ. While the ship's deck logs do not clearly reflect the exact locations of the ship at all times during this period, it is clear that the ship was at or right outside the 12 nautical mile territorial sea on several occasions between February 1967 to September 1967. The Veteran and his representative provided testimony as to the Veteran's experience onboard the ship. Specifically, they explained that the U.S.S. Ware was part of Operation Sea Dragon, which involved the U.S.S. Ware accompanying carrier ships to stations. The U.S.S. Ware would then move further toward the coast to engage in gun fire, targeting the coast, including highway choke points and bridges. The Veteran's representative additionally referenced naval almanac charts, indicating that from the ship the Veteran would be able to see a maximin distance of about 8 miles, and the Veteran indicated he regularly could see the coast of the Republic of Vietnam. Further, the Veteran provided the cruise book of the U.S.S. Ware that he received shortly after separating from service; the cruise book stated that the ship participated in 16 missions off the coast of the Republic of Vietnam between July 9, 1967, and August 3, 1967, and indicated that on several occasions the U.S.S. Ware was the primary firing ship. While the ship's deck logs, and the Veteran's statements, and the cruise book, do not show a definite location within the 12 nautical mile territorial sea, the Board finds that it is within the scope of the ship's service, especially with a documented location close to, if not on the territorial line, and the Veteran's statements of experience onboard the ship, that the ship was at some point within the 12 nautical miles during the Veteran's service aboard the ship. Therefore, in weighing the benefit of the doubt in favor of the Veteran, and with consideration of Procopio, the Board finds that the Veteran was in the 12 nautical mile territorial sea of Vietnam. Armed with this determination, service connection for prostate cancer is warranted on a presumptive basis. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309; Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir 2019) (en banc); Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966. The Veteran's appeal is therefore granted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.