Citation Nr: 1311522 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 12-23 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Michael P. Calabro, Attorney ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to July 1978. This appeal to the Board of Veterans' Appeals (Board) arises from a February 2009 rating decision of the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans' Affairs (VA). FINDINGS OF FACT 1. The Veteran has been diagnosed with prostate cancer. 2. The evidence reasonably shows that his naval service as a flight surgeon included on-the-ground visits in Vietnam while stationed on the USS Oriskany in 1970 and 1971. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for prostate cancer as due to herbicide exposure are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) includes duties to notify and assist claimants for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the claim for service connection for prostate cancer, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include prostate Cancer) to a degree of 10 percent or more at any time after service, the veteran is entitled to service connection even though there is no record of such disease during service. 38 C.F.R. § 3.307. 3.309(e). Veterans 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. The Veteran's available personnel records show that he served as a Flight Surgeon aboard the USS Oriskany beginning at least as early as May 1970. He was noted to be involved in combat operations for 75 days between July 1970 and May 1971. In May 1971, it was noted that he was beginning his second consecutive deployment as the Senior Flight Surgeon attached to Attack Carrier Wing (CVW) 19. An October 2001 private pathology report indicates that the Veteran was found to have right side infiltrating moderate to poorly differentiated adenocarcinoma of the prostate, Gleason Pattern 4+3 and left side infiltrating moderate to poorly differentiated adenocarcinoma of the prostate, Gleason pattern 3+4=7. In an October 2006 statement, the Veteran indicated that he served as the flight surgeon for CVW-19 on the USS Oriskany from May 1969 to December 1971. He noted that the Airwing Commander ordered him to attend to the medical and aviation needs of Airwing personnel. These duties involved flying into Danang aboard the carrier onboard delivery (COD) once each line period to perform these duties. He usually spent 5 to 6 days at the Fleet Air Support Unit (FASU) each line period for a total of about 60 days in country. He noted that in 2001, he underwent a radical prostatectomy for cancer with pathology revealing a Gleason 9 tumor metastatic to the pelvic lymph nodes. He subsequently underwent radiation treatment and hormonal ablation. In January 2011, the Veteran's attorney submitted a notarized affidavit from the Veteran. The affidavit indicates that the Veteran was diagnosed with prostate cancer in 2001; that he served on active duty with Air Wing 19 in the Gulf of Tonkin on or before June to December 1970 and on or before June to December 1971 in the waters near Vietnam; that he was ordered to oversee the air crew from Air Wing 19 and that this involved regular land travel in Danang, Vietnam; and that one such occurrence was on November 10, 1970, when the Veteran performed oversight duties and was also present at a Marine Corps birthday event at the Marine Corps Officers Club in Danang. The affidavit also indicates that the Rear Admiral Sam Hubbard served with the Veteran during the time in question. Along with the affidavit, the Veteran submitted airfield photographs, which he indicated were taken in Danang during his time there. An internet profile obtained by the RO in April 2012 indicates that Samuel Hubbard served as the Commander of Airwing 19 onboard the USS Oriskany from May 1971 to June 1972. In an April 2012 report, the Joint Services Records Research Center (JSRRC) found that the USS Oriskany departed Alameda, California on May 14, 1970 for a Western Pacific deployment. It conducted special operations in the Gulf of Tonkin from June 14-30, July 13-21, August 4-25, September 18 to October 14 and November 8-20. It arrived back in Alameda on December 10, 1970. Deck logs from October 15 to December 10, 1970 documented the launching and recovery of aircraft but did not document the destinations that they were going to or coming from. In an October 2012 affidavit, Samuel Hubbard, retired Rear Admiral, U.S. Navy, indicated that to the best of his knowledge and belief, the Veteran, while serving as a flight surgeon for Airwing 19 aboard the USS Oriskany, visited a detachment of the airwing in Danang, Vietnam on regular occasions during the lines periods off the coast of North Vietnam. Rear Admiral Hubbard noted that the detachment of Airwing 19 was based in Danang, Vietnam to relieve deck space aboard the USS Oriskany. He also noted that there were regular daily flights from the USS Oriskany to Danang allowing the Veteran a ready opportunity to care for these detached aviators, all of which required and included a physical presence of the Veteran within the land borders of Vietnam during service. Although there is no specific documentation of record that the Veteran was actually on the ground in Vietnam in the early 1970s, his account of his trips to Danang appear to be consistent with his duties as a flight surgeon. This account is strongly buttressed by the corroborating affidavit of Rear Admiral Hubbard. Consequently, resolving reasonable doubt in the Veteran's favor, the Board finds that he did serve in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 and must be presumed to have been exposed to an herbicide agent. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. Additionally, as there is no affirmative evidence of non-exposure, the Veteran is deemed to have been so exposed. Accordingly, as he is also shown to have developed prostate cancer, service connection for this disability is warranted. 38 C.F.R. § 3.307. 3.309(e). ORDER Service connection for prostate cancer as due to herbicide exposure is granted. ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs