Citation Nr: 1322004	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  10-02 309	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for residuals of prostate cancer, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel


INTRODUCTION

The Veteran had active service from December 1968 to September 1970. 

This matter comes before the Board of Veterans' Appeals (Board) from September 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Louisville, Kentucky.  

The Veteran's electronic claims file in the Virtual VA paperless claims processing system has been reviewed. 


FINDINGS OF FACT

1. The Veteran has been diagnosed with prostate cancer. 

2. It is at least as likely as not that the Veteran set foot in the Republic of Vietnam; he is presumed to have been exposed to herbicides in service.


CONCLUSION OF LAW

The Veteran's prostate cancer is presumed to have been incurred in 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

In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012).

The Veteran contends that he went ashore to Vietnam when he was stationed aboard the USS Mattaponi in service, that he is presumed to have been exposed to herbicide agents, and he should be presumptively service connected for prostate cancer.

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. 38 C.F.R. § 3.303.

A Veteran who served in Vietnam between January 9, 1962 and May 7, 1975, is presumed to have been exposed during such service to an herbicide agent.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  Service connection is warranted on a presumptive basis for the diseases listed in 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e), which includes prostate cancer.  See 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a).  Private treatment records reflect that the Veteran was diagnosed with prostate cancer and underwent a radical prostatectomy in December 2007.  The Veteran underwent a prostatectomy and he no longer has prostate cancer, however there are still residuals of prostate cancer, specifically the removal of the prostate. 

VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict.  See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  The dispositive issue in this case is whether the Veteran has was present in Vietnam; if so, he is entitled to service connection for prostate cancer on a presumptive basis. 

The Veteran's DD 214 reflects service from December 1968 to September 1970 with his last duty assignment and major command being aboard the USS Mattaponi (AO-41).  The DD 214 shows receipt of the Vietnam Service Medal with two bronze stars and the Vietnam Campaign Medal.  Personnel records indicate that he reported for duty aboard the USS Mattaponi in April 1969 and was aboard until September 1970.  Records show that the USS Mattaponi was in the official waters of Vietnam in 1970.  The USS Mattaponi provided mobile logistic support to naval units engaged in combat operations against North Vietnam.  The Veteran's military occupational specialty was a boatswain mate.  

The Veteran reports that as part of the combat support operation the ship was anchored off shore and delivered supplies ashore, and that he went onto Vietnam aboard a supply boat.  The Veteran submitted a photograph of the USS Mattaponi that he took from the supply boat.  The photograph was clearly taken from a boat at sea level.  

In sum, the Veteran was a boatswain aboard a supply ship, USS Mattaponi, in the official waters of Vietnam, during the Vietnam War, with photographic evidence that he was aboard a supply boat.  The Veteran reports that while aboard the supply boat he went ashore to deliver supplies.  The Veteran's account of having set foot in Vietnam is consistent with the circumstances of his service and the Board finds his report of being on the landmass of Vietnam to be credible.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  There is no evidence that the Veteran did not go ashore.  Any doubt is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102.

The Veteran was present in Vietnam.  It is presumed that he was exposed to herbicides, service connection for residuals of prostate cancer is warranted.  38 C.F.R. § 3.307, 3.309(e).  


ORDER

Service connection for residuals of prostate cancer is granted.



____________________________________________
D. MARTZ AMES
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs