Citation Nr: 1322916 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 11-04 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to December 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied service connection for prostate cancer, status post radical prostatectomy with erectile dysfunction (ED), and diabetes mellitus, type II (DM). His case is currently under the jurisdiction of the VA RO in Oakland, California. FINDINGS OF FACT 1. The Veteran was exposed to an herbicide while stationed at Eglin Air Force Base in 1967. 2. The competent evidence establishes a current diagnosis of prostate cancer. 3. The competent evidence establishes a current diagnosis of diabetes mellitus, type II. CONCLUSIONS OF LAW 1. Prostate cancer is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Diabetes mellitus, type II, is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all 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 Veteran. 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. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) As discussed below, the Veteran's claims of entitlement to service connection for prostate cancer and DM has been granted. As such, the Board finds that any error related to the VCAA on these claims is moot. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claims Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (1) medical evidence of a 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 of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer and DM, shall be service connected if it becomes manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307(a)(6) (2012). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2012). The Veteran contends that he has prostate cancer and DM that are the result of herbicide exposure while serving as a military police officer at Eglin Air Force Base. Prostate cancer and DM are presumptive diseases under 38 C.F.R. § 3.309(e). The Board notes initially that the Veteran has not claimed that he was exposed to herbicides at any other time during his active military service. Thus, the Board need not discuss other potential herbicide exposure, including the presumption of herbicide exposure for veterans who served in the Republic of Vietnam. The Veteran is not shown to have served in country in Vietnam. The medical evidence of record indicates that the Veteran has been diagnosed with and treated for both prostate cancer and DM. Therefore, the remaining question in determining whether the Veteran is entitled to the presumption of service connection for DM due to herbicide exposure is whether the Veteran was exposed to herbicides while serving on active duty. The Veteran's DD-214 and service treatment records, including separation examination, show that he served at Eglin Air Force Base at the end of his service in 1967. Additionally, his DD-214 indicates that his military occupation specialty (MOS) was apprentice security policeman and that he served in a Security Police squadron. The Veteran claims that he performed perimeter patrol and guard duty while serving with the military police. He has also indicated that the perimeters and guard posts were absent of foliage, suggesting the use of a defoliant. He argues that he was exposed to herbicides when performing these duties. In support of his claim, the Veteran has submitted a letter from the Department of the Air Force indicating that herbicides containing dioxin were used at Eglin Air Force Base from 1962-1970, including specifically in 1967. Although the Department of the Air Force letter does not specifically verify that the Veteran was exposed to herbicides, the Board finds that the evidence tends to corroborate his contentions that he was exposed to herbicides while stationed at Eglin Air Force Base. Specifically, it has been verified that the Veteran served at Eglin Air Force Base at the time that herbicides were being tested. Further, the Veteran's MOS of policeman is consistent with perimeter patrol and guard post duty. 38 U.S.C.A. § 1154(b). There is no evidence to contradict the Veteran's allegations that these areas were absent of foliage and that he may have been exposed to herbicides in performing these duties. Affording the Veteran the full benefit of the doubt, the Board finds that he was exposed to herbicides while serving at Eglin Air Force Base and that his current prostate cancer and DM can be presumed to be related to herbicide exposure in service. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The claims of entitlement to service connection for prostate cancer and DM, to include as due to herbicide exposure, are granted. ORDER Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for diabetes mellitus, type II, is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs