Citation Nr: 0001569 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-10 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for prostate cancer, claimed as a result of exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD R. A. Seaman, Associate Counsel INTRODUCTION The veteran served on active duty from September 1967 until he retired in September 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 1997 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In December 1998, the RO received the veteran's claim of service connection for a post-traumatic stress disorder, which is currently pending. The veteran and his spouse provided testimony at a personal hearing before the RO in December 1998. A transcript of that hearing is of record. FINDINGS OF FACT 1. The veteran had verified active service from September 1967 to September 1991, including verified service in Thailand; the veteran has provided competent and credible evidence that he visited Vietnam, once in 1970 and once in 1973. 2. The veteran was diagnosed with prostate cancer and residuals thereof by VA and private physicians in 1996. CONCLUSION OF LAW The veteran's prostate cancer is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background. Service medical records, including the examinations at induction into service and separation from service, are negative for any diagnosis, treatment, or complaints related to a prostate disorder. The veteran retired from military service in September 1991. In August 1996, he filed a claim of service connection for prostate cancer as a result of exposure to Agent Orange between 1971 and 1973. Service personnel records reflect the veteran's service between 1968 and 1974 as a Medical Service Technician at Air Force bases in the Philippines, Japan, and Thailand. DD Form 214 reflects that he was awarded, among other citations, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Vietnam Gallantry Cross with device. There are no service personnel or medical reports of record indicating that the veteran spent any time on the ground in Vietnam. Private medical records reflect the veteran's post-service treatment for prostate cancer. The records show that the veteran was initially diagnosed with adenocarcinoma of the prostate gland in February 1996. They further reflect that he underwent a bilateral pelvic lymphadenectomy and radical retropubic prostatectomy in March 1996. Follow-up examinations were conducted through December 1996. In December 1996, the veteran was afforded VA general medical examination to determine the extent to which he suffered from residuals of prostate cancer. The VA physician's examination revealed no evidence of metastases, and the veteran appeared to be in no acute distress. His abdomen was well healed, with a midline hypogastric incisional scar. Diagnoses were post radical prostatectomy for carcinoma of prostate; residual mild radiation cystitis and proctitis; and urethral stenosis which required dilation secondary to radiation treatment for prostate cancer. In a July 1997 decision, the RO held that service connection could not be granted on a presumptive basis under the Agent Orange Act of 1991, as the required service in Vietnam had not been shown. The RO also held that a prostate disorder had not been shown during the veteran's active duty, and had not manifested to a compensable degree within one year of his service. The RO concluded that there was no basis in the available evidence to establish service connection because prostate cancer was neither incurred during military service nor aggravated or caused thereby. The veteran's claim was denied, and he initiated a timely appeal. The July 1997 decision also informed the veteran that he should submit for consideration any proof that he had been on the ground in Vietnam for any period of time, no matter how brief. In the notice of disagreement and the substantive appeal, the veteran stated that he was aboard an Air America flight in March 1970 which landed in Vietnam while enroute from Japan to Thailand. He also reported that in 1972 he traveled by airplane to Vietnam, on verbal orders, to assist in transporting a patient with a head injury to a neurosurgeon in Saigon. He stated that he arrived in Vietnam early in the morning and did not leave until the following day. He reported that he bought two ceramic elephants during his stay. Additionally, the veteran asserted his belief that he could have been exposed to Agent Orange as a result of his work as a Medical Service Technician at Air Force bases in Japan. This was so, he contended, because his job involved meeting flights bringing wounded servicemen directly from Vietnam. He stated that he attended the wounded by cleaning and bathing them, and changing the dressings on their wounds. He reported that the some of the wounded had been exposed to Agent Orange, and were often transported directly from the field "without being washed [or] cleaned up." The veteran opined that "due to the advanced stage of my cancer and the slow growth rate of this type [of] cancer . . . I more than likely was affected while still on active duty and did not show any symptoms until later." In January 1998, the RO requested in writing that the veteran corroborate his time in Vietnam by means of a "buddy" statements and/or letters to friends or relatives. In response, the veteran submitted a notarized statement signed by a fellow serviceman, which states: I knew [the veteran] while stationed [in Thailand] in 1972-1973. Sometime in the Spring of 1973 [the veteran] went to Viet Nam on an over[-]night trip with an emergency Air Evac mission. When he returned the next day I met him at the Air Terminal and helped him to move some ceramic elephants he purchased in Viet Nam to his house in town. In a further attempt to verify the veteran's presence in Vietnam, the RO requested that the National Personnel Records Center (NPRC) provide the veteran's service records and any pertinent morning reports. In May 1998, NPRC informed the RO that the veteran's service records had already been supplied, and that no Air Force morning reports after 1966 were on file. During a personal hearing in December 1998, the veteran testified that he had stopped in Vietnam for one and a half hours on March 3, 1970, during a flight from Japan to Thailand. He did not remember the flight number, but believed that it was an Air America flight. He testified that in 1973 he volunteered for an overnight flight originating in Thailand in order to airlift a wounded soldier to Saigon. He reported that he spent the night there and returned the next day, spending "more than 24, but less than 48" hours in Vietnam. He stated that no temporary duty orders exist regarding the 1973 trip, as he traveled on verbal orders. The veteran's spouse testified that she was married to the veteran when he was stationed in Thailand, and that she was aware of his overnight trip to Vietnam in 1973. The veteran furnished the hearing officer with a sworn statement from his sister, who remembered that the veteran told her about traveling to Vietnam for a medical emergency and purchasing ceramic elephants while there. In December 1998, the hearing officer issued a supplemental statement of the case which continued the previous denial of the veteran's claim, holding that the evidence had not shown that the veteran served in Vietnam or was exposed to herbicides through some other military experience. Although the RO noted that the veteran's testimony was "honest and faithful," it was held that his claim could not be granted without verification of actual service in Vietnam. Legal Criteria. Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim to VA has the burden of providing evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Appeals for Veterans Claims (Court) defines a well-grounded claim as one that is plausible; a claim that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board is not free to judge weight or credibility at the well-groundedness stage, except to the extent that it may determine certain evidence to be inherently incredible or beyond the competence of the witness. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the well- groundedness stage all evidence not, on its face, inherently incredible or beyond the competence of the witness is presumed credible. Service connection may be granted for a disability resulting from personal injury incurred or disease contracted in the line of duty or for aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Service connection generally requires (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 present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is required for the claim to be well grounded. See Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997). This burden may not be met merely by presenting lay testimony, as lay persons are not competent to offer medical opinions. See, e.g., Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). There is a rebuttable presumption of entitlement to service connection for certain listed diseases diagnosed (to a degree of disability of 10 percent or more) at any time after service, which are attributable to Agent Orange exposure for veterans who served in the Republic of Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. The list of specified diseases for presumptive service connection due to exposure to herbicides includes prostate cancer. In McCartt v. West, 12 Vet. App. 164 (1999), the Court specifically found that, in accordance with 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309, in the case of a Vietnam-era veteran, no direct evidence as to the in-service incurrence and medical nexus prongs of Caluza is necessary when the provisions of those sections are satisfied. Id. at 167. An herbicide agent means a chemical or an herbicide used in support of the United States and Allied Military Operations in the Republic of Vietnam from January 1962 through May 1975. 38 C.F.R. § 3.307(a)(6). Agent Orange is generally considered an herbicide agent. A veteran who has received a confirmed diagnosis of one of the presumptively listed diseases above and who had actual service in Vietnam from January 1962 through May 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. A factual basis may be established by medical evidence, competent lay evidence, or both. 38 C.F.R. § 3.307(b). "Service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313(a) (1999). Evidence which may be considered in rebuttal of service connection of a disease listed in 38 C.F.R. § 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. 38 C.F.R. § 3.307(d). The expression "affirmative evidence to the contrary" will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in consideration of all the evidence of record, support a conclusion that the disease was not incurred in service. Id. In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. Thus, to deny a claim on its merits, the preponderance of the evidence must be against the claim. Analysis. Initially, the Board finds that the veteran's claim of entitlement to service connection for prostate cancer, claimed as a result of exposure to herbicides, is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The record includes the accounts by the veteran and a fellow serviceman recounting the veteran's visitations to Vietnam, statements which are neither inherently incredible nor beyond their competence; and includes a post-service diagnosis of prostate cancer, a disease entitled to regulatory presumption under 38 C.F.R. § 3.309. Thus, the veteran has submitted a claim that is not "inherently implausible." See Murphy, 1 Vet. App. at 81. As noted above, the regulations pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, now provide for a presumption of exposure to herbicide agents for veterans whose service involved duty or visitation in Vietnam. 38 C.F.R. § 3.307(a)(6). In this case, despite the RO's unsuccessful attempts to verify the veteran's allegations of his presence in Vietnam through service department records, there is evidence supporting his claim that he actually "visited" Vietnam. The veteran has provided a statement from a fellow serviceman to the effect that the veteran spent at least a brief amount of time in Vietnam. The veteran provided testimony regarding his two visitations to Vietnam. As a general matter, in order for any testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration. See Espiritu, supra; Layno v. Brown, 6 Vet. App. 465 (1994). A witness must have personal knowledge in order to be competent to testify to a matter. Competent testimony is thus limited to that which the witness has actually observed, i.e., to that which is within the realm of his personal knowledge as distinguished from opinions or conclusions drawn from such facts. The veteran testified that he visited Vietnam on two occasions. He testified about concrete facts within his own observation and recollection. The Court has held that VA cannot ignore appellant's testimony simply because appellant is an interested party. VA cannot treat a veteran's sworn testimoy only as a part of his contentions; VA must account for and explain its reasons for rejecting the testimony. See Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). The hearing officer specifically found that the veteran's testimony was "honest and faithful." Accordingly, the Board finds that the veteran has provided competent and credible testimony regarding his two visitations to Vietnam. Other statements submitted by the veteran since he filed his claim have been consistent to such a degree that no doubt has been cast upon the credibility of his accounts. Additionally, the veteran's testimony is supported by his fellow serviceman's statement that he met the veteran at an airport upon the veteran's return from Vietnam in 1973. His wife and his sister have also provided evidence in support of his claim. Significantly, the Board notes that the record is devoid of evidence that could serve to rebut the veteran's competent and credible evidence regarding his visits to Vietnam. His account of his visitations to Vietnam is certainly consistent with official service records regarding the circumstances of his service. The RO held that even though the veteran's testimony regarding his visitations to Vietnam was considered to be honest and faithful, additional verification of actual service in Vietnam was required. The RO did not cite any statutory or regulatory authority for this requirement or specify the nature and type of verification needed. In the opinion of the Board, the evidence provided by the veteran is sufficient to establish his visitation to Vietnam. Further, the record lacks any affirmative evidence which tends to show that the veteran's prostate cancer can be dissociated from the veteran's service through a showing of intercurrent causation. Without such evidence, there can be no finding that the evidence in this case preponderates against the veteran's claim. Based on the above, the Board finds that the evidence supports the veteran's claim of having been physically present in Vietnam in 1970 and 1973. Consequently, the Board finds that the preponderance of evidence does not weigh against the veteran's claim, and an allowance of service connection for the issue on appeal is warranted under the presumptions afforded pursuant to 38 C.F.R. § 3.307 and 3.309. ORDER Service connection for prostate cancer is granted. Gary L. Gick Member, Board of Veterans' Appeals