Citation Nr: 1318976 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 08-30 644 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from January 1964 to November 1967. He died in September 2009. At the time of the Veteran's death an appeal of a claim of service connection for prostate cancer was pending. Following the Veteran's death, the appellant applied to be substituted as the claimant for purposes of processing the claim, and that status was granted by the agency of original jurisdiction (AOJ) pursuant to 38 U.S.C.A. § 5121A. Accordingly, the appellant has been substituted as the claimant for the purpose of the claim pending at the date of the Veteran's death. Id. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 and November 2007 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Togus, Maine, and Detroit, Michigan. The Veteran had requested that he be scheduled for a hearing before a Veterans Law Judge of the Board. This hearing was scheduled for September 2009. However, the Veteran passed away prior to the date of the hearing. In her request to be substituted as the claimant, in correspondence dated in September 2009, the appellant indicated that she did not wish to have a hearing. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran had a diagnosis of prostate cancer, and had set foot in the Republic of Vietnam during the Vietnam Era. 2. The Veteran's prostate cancer was compensably disabling. CONCLUSION OF LAW The criteria for the establishment of service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1116, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for prostate cancer will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii) , 3.309(e). In addition, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicides during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the service member must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. Haas v. Peake, 525 F.3d 1168 (Fed. Cir 2008). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran sought service connection for prostate cancer, a disability with which he was diagnosed in June 2006. Private medical records from Mercy General Health Partners dated in June 2006 show a diagnosis of a solitary one millimeter focus of moderately differentiated prostatic adenocarcinoma on the right side of the prostate gland, and moderately differentiated adenocarcinoma on the left side of the prostate gland. Thus, the issue in this case turns to whether the Veteran had service in the Republic of Vietnam during the Vietnam era. The Veteran asserted that during active service in November 1966, he was transferred from Travis Air Force Base in California, to Takhli, Thailand, and that while on his transport flight over, he had a layover in Saigon, in the Republic of Vietnam. A review of the Veteran's available service personnel records confirms that he departed Travis Air Force Base in California on November 21, 1966, and that he arrived in Takhli, Thailand on November 24, 1966. The service personnel records do not specify the route taken. In August 2007, the Veteran submitted an Itinerary that outlined the specific route taken on a trip from Travis Air Force Base in California, to Takhli, Thailand. The Itinerary does not name the Veteran as being the holder. However, the Itinerary shows the route as follows: Depart Travis AFB: November 21, 1966 @ 20:00 Arrive Anchorage, Alaska: November 22, 1966 @ 00:30 Depart Anchorage, Alaska: November 22, 1966 @ 01:15 Arrive Tokyo, Japan: November 23, 1966 @ 08:30 Depart Tokyo, Japan: November 23, 1966 @ 09:45 Arrive Clark AFB, Philippines: November 23, 1966 @ 15:30 Depart Clark AFB, Philippines: November 23, 1966 @ 16:30 Arrive Saigon, Vietnam: November 23, 1966 @ 21:15 Depart Saigon, Vietnam: November 23, 1966 @ 22:00 Arrive Bangkok, Thailand: November 23, 1966 @ 23:00 Depart Bangkok, Thailand: November 24, 1966 @ 02:30 Arrive Takhli, Thailand: November 24, 1966 @ 13:00 As noted above, while the service personnel records confirm that the Veteran departed Travis Air Force Base in California on November 21, 1966, and that he arrived in Takhli, Thailand on November 24, 1966, they do not specify the route taken. Nevertheless, information available on the internet shows a map of MATS routes for western transport of the Air Force in 1964, which demonstrates that a route for transport flights leaving the continental United States from Travis Air Force Base for Bangkok, Thailand, would go to Elmendorf Air Force Base in Anchorage, Alaska; then to Tokyo, Japan; then to Manila, Philippines; then to Saigon, Vietnam; and then finally Bangkok, Thailand. See http://upload.wikimedia.org/wikipedia/commons/3/3f/Wtaf-routes-1964.jpg. In a letter to the RO dated in November 2007, the Veteran swore to the authenticity of the submitted itinerary. In light of the Veteran's service personnel records, the itinerary submitted outlining the route taken from the continental United States to Thailand, and the available information showing that transport flights from the United States to Thailand included routes that were consistent with that found on the Veteran's itinerary, the Board finds that the assertions of the Veteran as to his being in Vietnam to be consistent with the circumstances of his service. The Veteran's assertions are consistent with the above-cited MATS routes for western transport of the Air Force during the Vietnam War era, which show that flights leaving Travis Air Force Base with a destination in Bangkok likely went through Saigon. The Veteran is competent to report what his has witnessed, and his statements have been substantiated by the service personnel records, the itinerary submitted, and the MATS routes. The Board has no reason to doubt the Veteran's credibility. In light of the objective and lay evidence of record, and resolving any doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran likely set foot in the Republic of Vietnam during the Vietnam Era. Consequently, he is considered to have Vietnam service and is, therefore, presumed to have been exposed to herbicides during his active service. The Veteran was diagnosed as having prostate cancer in June 2006, for which presumptive service connection is available. The remaining question is whether the Veteran's prostate cancer had manifested to a compensable degree. In this regard, a VA outpatient treatment record dated in February 2007 shows that the Veteran had undergone prostate radioactive seeding for treatment of his prostate cancer. Malignant neoplasms of the genitourinary system are rated as 100 percent disabling for six months following cessation of radiological therapy. See 38 C.F.R. § 4.115b, Diagnostic Code 7528 (2012). As such, the Veteran's prostate cancer had manifested to a compensable degree. In light of the foregoing, and resolving reasonable doubt in the claimant's favor, the Board finds that the criteria for the grant of service connection for prostate cancer are met. The appeal is granted. ORDER Service connection for prostate cancer is granted. _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs