Citation Nr: 1315530 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 05-14 492A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-operative residuals of prostate cancer. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from February 1970 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating action of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in February 2013; a transcript of the hearing is associated with the claims file. As a procedural matter, the Board notes that the Veteran submitted additional evidence after the RO last considered the claim. Although he did not waive his right to have the evidence initially considered by the Agency of Original Jurisdiction (AOJ), the Board is granting the full benefits sought on appeal and thus, there is no prejudice to the Veteran to have such evidence considered by the Board. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran had active service in Vietnam during the Vietnam era. 2. The Veteran subsequently developed prostate cancer. CONCLUSION OF LAW It is presumed that the Veteran's prostate cancer was incurred as a result of his active service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent during active service and manifests prostate cancer to a compensable degree any time after such service, prostate cancer will be service connected even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran seeks service connection for the post-operative residuals of his prostate cancer, which he claims is a result of exposure to Agent Orange during service in the Republic of Vietnam during the Vietnam era. Specifically, he maintains that he was exposed to Agent Orange when he departed his ship, the USS Alamo, LSD-33, on a few occasions in 1970 and 1971, when his unit was tasked with bringing supplies to Vietnam from the Philippines and Hong Kong. A review of the record shows the Veteran was diagnosed with prostate cancer in June 2003, and subsequently underwent surgery following such diagnosis. The Veteran has continued to receive treatment for prostate cancer and associated residuals since that time. With respect to whether he served in Vietnam, the Board notes that the testified, during the February 2013 hearing before the Board that he was assigned to Beachmaster Unit One after boot camp, in approximately April or May 1970 through November 1971, when he was discharged from service. He further testified that while assigned to such Unit, he served aboard the USS Juneau, LPD-10, and when the ship arrived in the Philippines in the summer of 1970, his Unit was transferred to Alamo. The Veteran asserted that while stationed aboard Alamo, he made approximately three trips to Vietnam, namely to Da Nang, with each trip lasting a few days. He stated that one of the trips was in October 1970, and while in country, he performed various labor jobs. He acknowledged that his records demonstrate his assignment to Juneau in November 1970; however, he asserted that he was always assigned to Beachmaster Unit One, and thus, was aboard Juneau in the summer of 1970. The Veteran's DD Form 214 shows that he served in the U.S. Navy from February 1970 to November 1971, and reflects one year and five and a half months of foreign service. Records show he was transferred to Beachmaster Unit One in late May 1970, and remained there until discharge in November 1971. He received, in part, the Vietnam Service Medal with Bronze Star. A November 1970 service personnel record shows the Veteran was assigned to Juneau for additional duty for approximately four months with Amphibious Squadron Eleven as a member of Beachmaster Unit One, Detachment Delta. A January 1971 service treatment record notes the Veteran sought treatment while aboard Alamo. In this regard, the Board notes that VA Compensation and Pension service's Vietnam Era Navy Ship Agent Orange Exposure Development Site, to include, the recent document entitled, " Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents," indicates that Alamo conducted numerous troop, supply, and equipment landings with smaller boats at bases such as Da Nang between August 1964 and October 1972, and while anchored in Da Nang Harbor, sent crewmembers ashore. In May 2003, the National Personnel Records Center (NPRC) indicated that the Veteran was attached to a Unit (Beachmaster Unit One) that could have been assigned to ship or to shore. For U.S. Department of Defense purposes, the Unit was credited with Vietnam service from October 11, 1970, to October 13, 1970; however, the NPRC determined that the Veteran's service record did not provide conclusive proof of his in-country presence. In May 2012, the NPRC provided additional dates of Vietnam service associated with Beachmaster Unit One, that could have been assigned to ship or to shore, to include late December 1970 through February 1971; however, it also determined that the Veteran's service record did not provide conclusive proof of his in-country presence. Although the NPRC was unable to conclusively confirm the Veteran's in-country presence in the Republic of Vietnam during October 1970 or during December 1970 through February 1971, based upon the Veteran's testimony and corroborating service records, the Board concedes that the Veteran served in the Republic of Vietnam during the Vietnam era. Specifically, the record indicates that the Veteran was assigned to Beachmaster Unit One in late May 1970, and remained there until his discharge in November 1971. During his time with that Unit, records show he was assigned to Juneau for additional duty in November 1970, suggesting that he had served aboard the ship previously. Thus, the Board finds the Veteran's testimony to be credible, that his Unit was transferred from Juneau to Alamo in the summer of 1970, and that such Unit went to Vietnam in October 1970 during the aforementioned confirmed dates in order to deliver supplies, and while in country, he performed various labor jobs. Moreover, the record strongly suggests that the Veteran was in Vietnam in January 1971, as his service treatment records indicate his assignment aboard Alamo at such time, and as above, the NPRC confirmed Beachmaster Unit One's service in Vietnam on several occasions in January 1971. In this regard, the Board finds that consistent with his prior service in country, the Veteran likely left Alamo to perform various labor jobs ashore. In sum, as the Veteran served in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides during such service and the record confirms that the Veteran was diagnosed with prostate cancer. Accordingly, entitlement to service connection for post-operative residuals of prostate cancer is warranted. ORDER Entitlement to service connection for post-operative residuals of prostate cancer is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs