Citation Nr: 1007258 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 05-00 414A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Dax J. Lonetto, Sr., Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1969, from October 1974 to June 1976 and from July 1976 to August 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Reno, Nevada Department of Veterans' Affairs (VA) Regional Office (RO). This case has since been transferred to the St. Petersburg, Florida VARO. The Veteran testified at a Travel Board hearing before the undersigned Veterans' Law Judge in November 2009. A transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, the information of record establishes that the Veteran served in the Republic of Vietnam during the Vietnam Era; and thus exposure to herbicide agents in service may be presumed. 2. The Veteran has been diagnosed with prostate cancer. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, the criteria for presumptive service connection of prostate cancer, to include as due to herbicide exposure, are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2009). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the Appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). The following diseases are deemed associated with herbicide exposure, under current VA law: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, 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), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The foregoing diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. §§ 501(a), 1116; 38 C.F.R. §3.309 (e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32395- 32407 (2007). Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2009). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. Analysis In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that, while serving in the U.S. Navy off the coast of Vietnam during the Vietnam Era, he had set foot in the country of Vietnam on more than one occasion and, as such, he was exposed to herbicides which later led to his prostate cancer. During a November 2009 Travel Board hearing, the Veteran testified that he served in the Navy aboard the U.S.S. Valley Forge and the U.S.S. Monticello during the Vietnam War wherein, in addition to his regular duties as a radio operator, he was provided verbal orders to go with the helicopter crews and recover the bodies of soldiers. He also reported that he left his ship and set foot in Vietnam during beach parties that were held in Da Nang. The Veteran testified that he was diagnosed with prostate cancer following his active service and that his prostate had since been removed in October 1999 with residuals which included urinary incontinence and sexual dysfunction. The Veteran's representative at this time also discussed some online treatise information of record which indicated that the U.S.S. Valley Forge had helicopters that had flown food and ammunition to the men onshore and had flown casualties back to the ship in 1966 and 1967. In an October 2003 lay statement, a fellow service member reported that he served with the Veteran on the U.S.S. Valley Forge as a radar man during the Vietnam War, from July 1967 to August 1968. He also stated that the U.S.S. Valley Forge was used as a command post for Marines. Finally, the service member reported that he and the Veteran participated in both, beach parties in Vietnam and in operations in which they had to recover and carry fallen companions back to their ship. In a March 2009 lay statement, the Veteran's wife reported that, due to his prostatectomy in October 1999, the Veteran suffered from incontinence, was sterile and could not perform sexually. In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) the Federal Circuit held that the lower court had erred in rejecting VA's interpretation of section 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. See VAOPGCPREC 27-97, 62 Fed. Reg. 63604 (1997) (service in a deep-water vessel in waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam); VAOPGCPREC 7-93, 59 Fed. Reg. 4752 (1994) (service in the Republic of Vietnam does not include the service of a Vietnam-era Veteran who flew high- altitude missions in Vietnam airspace but never actually landed in Vietnam). Hence, a showing of actual duty or visitation in the Republic of Vietnam is required to establish qualifying service in Vietnam under current VA law for presumptive purposes only, under 38 C.F.R. §3.307(a)(6). Service personnel records reflect that the Veteran was assigned to the U.S.S. Valley Forge and the U.S.S. Monticello during his period of active service from August 1965 to August 1969 and that his MOS was that of a "radio operator." These records also noted in November 1969, when the Vietnam Service Medal was awarded, that the U.S.S. Valley Forge operated within Vietnam combat zones from November 1967 to July 1968. The Veteran's DD form 214 reflects that he was awarded the Vietnam Service Medal with four bronze stars, the Vietnam Campaign Medal with device and the National Defense Service Medal. Service treatment records are absent of any findings of exposure to herbicides, prostate cancer or related problems. Treatise information submitted by the Veteran, and his representative reflect that the U.S.S. Valley Forge participated in several operations from 1966 to 1969 wherein helicopters flew back and forth from the ship to the landmass of Vietnam carrying supplies, casualties, logistic support and medical evacuation (MedEvac) support for troops in the coastal area. This information also reflects that Marines were off-loaded from the helicopters in the country of Vietnam on several occasions during this time. Private medical records from September 1999 to October 2002 reflect that the Veteran was diagnosed with prostate cancer and underwent a radical retropubic prostatectomy in October 1999, after which time he was diagnosed with infiltrating adenocarcinoma of the prostate as well as status post radical prostatectomy. These records also reflect that, following the October 1999 radical retropubic prostatectomy, the Veteran was treated for the resultant residuals. After a careful review of the evidence of record and after resolving all reasonable doubt in favor of the Veteran, the Board has determined that service connection is warranted for residuals of prostate cancer, to include as due to herbicide exposure. The medical evidence of record reflects that the Veteran has been diagnosed with prostate cancer and was treated for the residuals thereof following a radical retropubic prostatectomy in October 1999. The Board finds the Veteran's testimony regarding verbal orders to go with the helicopter crews and recover soldiers bodies, thereby setting foot in the country of Vietnam, while stationed on the U.S.S. Valley Forge during the Vietnam Era, is credible, particularly when combined with the treatise information demonstrating that U.S.S. Valley Forge, in fact, participated in operations with helicopter missions which involved retrieving casualties from the landmass of Vietnam during the Veteran's first period active service. Moreover, the fellow service member lay statements supported the Veteran's contentions by reporting that the U.S.S. Valley Forge was used as a command post for Marines and that he and the Veteran participated in beach parties on the coast of Vietnam and operations wherein they had to recover and carry fallen companions back to their ship. In Pentacost v. Principi, 16 Vet. App. 124 (2002), the United States Court of Appeals for Veterans Claims (Court), determined that if the veteran's presence in areas of documented combat can be verified, this would be sufficient to find that he was exposed to combat stressors, even without the explicit documentation of his participation in specific historic events. Applying Pentacost by analogy, the Board finds that the treatise evidence demonstrating the participation of the U.S.S. Valley Forge in operations wherein helicopters flew onto the landmass of Vietnam to recover casualties and off-loaded Marines, along with the lay statement from the fellow service member and the Veteran's testimony, which the Board has found to be credible, are sufficient to find that he had set foot in the country of Vietnam during his active service. See id. Therefore, the Board will resolve all reasonable doubt in favor of the Veteran and deem that he has shown actual duty or visitation in the Republic of Vietnam, thereby establishing qualifying service in Vietnam under current VA law for presumptive purposes, under 38 C.F.R. §3.307(a)(6). Therefore, resolving all reasonable doubt in favor of the Veteran, service connection for residuals of prostate cancer, to include as due to herbicide exposure, is warranted. 38 C.F.R. § 3.102 (2009). See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for residuals of prostate cancer, to include as due to herbicide exposure, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs