Citation Nr: 1319105 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 08-04 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a prostate disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to July 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2006 rating decision of the Atlanta, Georgia, VA Regional Office (RO). The above stated issue was previously remanded in February 2010 in order for the RO to obtain additional treatment records and afford the Veteran a VA examination, to include an etiological opinion. That development having been achieved, the Board then requested an additional medical opinion from a Veterans Health Administration (VHA) examiner in January 2013. That opinion having been obtained, the issue is now once again before the Board and ready for appellate review. Subsequent to the aforementioned response from VHA, the Veteran submitted additional evidence in support of his claim, along with an appropriate waiver of RO consideration. Therefore, the Board may proceed. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) for initial review unless this procedural right is waived by the appellant). A review of the Virtual VA paperless claims processing system was conducted. FINDING OF FACT 1. The Veteran had service in the Republic of Vietnam during the Vietnam era, and is therefore is presumed to have been exposed to Agent Orange or other herbicide agents during that time. 2. The Secretary of VA has specifically determined that there is a positive association between herbicide exposure and prostate cancer. 3. The Veteran has been diagnosed with prostate cancer and is presumed to have been exposed to herbicides due to service in the Republic of Vietnam during the Vietnam era. CONCLUSION OF LAW The criteria for service connection for prostate cancer, as due to herbicide exposure, have been met. 38 U.S.C.A. §§ 1110, 1116, 1131 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision herein to grant service connection for prostate cancer, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2008)) and the implementing regulations. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). Service connection may 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(d). Additionally, service connection for certain listed disabilities may also be established by legal presumption where a Veteran served on active duty in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6). Such a Veteran is presumed to have been exposed to an herbicide agent (Agent Orange) during service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii); see generally McCartt v. West, 12 Vet. App. 164, 166-68 (1999). "Service in the Republic of Vietnam" may include 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). Essentially, the presumption requires that the Veteran actually stepped foot on land within the borders of the Republic of Vietnam. See Haas v. Peake, 525 F.3d 1168, 1172 (Fed. Cir. 2008); see also VAOPGCPREC 27-97. The Veteran's personnel records show that he served in Vietnam for more than a year, between December 1967 and July 1969. The Board finds that Veteran had qualifying service in the Republic of Vietnam and he is therefore presumed to have been exposed to an herbicide agent in service. As prostate cancer is among the list of diseases that will be presumptively service connected if the Veteran was exposed to herbicides during active service, it will be service-connected where the evidence establishes herbicide exposure even where there is no evidence of such disabilities during service or any applicable presumptive period thereafter. See 38 C.F.R. § 3.309(e). 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Upon weighing the evidence, if 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 7 Vet. App. 498, at 511, aff'd per curiam, 78 F.3d 604. The Veteran contends that he currently has a prostate disorder that is causally related to bladder infections he had during military service. Recently, in February 2013 private treatment records, the Veteran was diagnosed with adenocarcinoma of the right prostate (prostate cancer). Although the Veteran has not alleged that his claimed prostate condition is related to exposure to an herbicide agent in service, in light of the recent diagnosis, the Board has considered whether presumptive service connection is warranted in this case. In short, the Veteran has provided private treatment records, dated in February 2013, of an ultrasound guided biopsy of the prostate gland which revealed prostatic adenocarcinoma in the right prostate with tumor present in 3 tissue cores. Benign prostatic tissue was found in the left prostate. The Board finds that medical evidence of record establishes that the Veteran is currently diagnosed with prostate cancer. Therefore, as in-service exposure to herbicides has been conceded and the Veteran has a diagnosis of prostate cancer, the Board concludes the Veteran is entitled to a grant of service connection for his prostate cancer, on a presumptive basis. 38 C.F.R. § 3.309(e). The Board, therefore, grants the claim of entitlement to service connection for prostate cancer. 38 U.S.C.A. §§ 1116, 5107; 38 C.F.R. §§ 3.307, 3.309; Gilbert v. Derwinski, 1 Vet. App. 49, at 53 (1990). ORDER Service connection for prostate cancer is granted. ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs