Citation Nr: 1322977	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  09-14 767	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure in service.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Young, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1962 to April 1967. 

This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the RO in St. Louis, Missouri that denied service connection for prostate cancer. 

The Veteran initially requested a Board hearing, however, by a letter dated in May 2009, his representative withdrew the hearing request.

The Board remanded the claim in February 2011 and in June 2012.  Review of the record indicates substantial compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1.  The Veteran set foot in the Republic of Vietnam during his military service and, thus, was presumptively exposed to herbicides.

2.  The Veteran is currently diagnosed with prostate cancer.

CONCLUSION OF LAW

The criteria for service connection for prostate cancer, claimed as due to herbicide exposure in service, has been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Notice and Assistance

The Board is granting in full the claim of service connection.  Further discussion of the duties to notify and assist is not necessary.  

II.  Legal Criteria

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 

There is a statutory presumption of service connection for certain diseases associated with exposure to herbicides for veterans who "served in the Republic of Vietnam."  38 U.S.C. § 1116.  Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307(6)(iii).  Prostate cancer is listed as a disease associated with exposure to herbicides.  38 C.F.R. § 3.309(e). 

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. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

III.  Factual Background

The Veteran contends service connection is warranted for his current prostate cancer disability because he stopped at Ton Son Nhut Air Base in Saigon, Vietnam for five hours while traveling from one duty station, located in Okinawa, Japan, to another duty station, located in Korat, Thailand, in April 1966.  See VA Form 9; see also November 2008 Notice of Disagreement.

The Veteran's service personnel records confirm that his duty assignments included service in Okinawa and Thailand, with a transfer between the two stations in April 1966.  

The Veteran was diagnosed with prostate cancer in December 2007.  See Dr. J. P. Prostate Biopsy Report.

In October 2011, the Veteran submitted an Internet article addressing the variety of routes between the continental United States and Southeast Asia, considering various factors.  

IV.  Analysis

Lay testimony is competent to establish facts that can be observed by the use of a person's five senses.  See Layno v. Brown, 6 Vet. App. 465 (1994).  As such, lay testimony is sufficient in certain instances to establish that the Veteran was in Vietnam.  However, in such cases, the Board is within its province to weigh that testimony and to make a credibility determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007).

In this case there is no reason to doubt the credibility of the Veteran's statements.  His service personnel records indicate that he was transferred to from Okinawa to Thailand at the time he alleged, but the records are silent on the specific itinerary the Veteran took on each trip.  The Board previously remanded the claim in an attempt to obtain more specific information, but no such information was available.  Therefore service personnel records do not contradict the Veteran's statements.  The Veteran has provided a consistent account of the transfer through Vietnam and his consistent recollection is not contradicted by the evidence of record.  As such, the Board finds no reason to doubt the credibility of the Veteran's statements.

VA has been unable to find evidence confirming the Veteran set foot in Vietnam.  However, the Board cannot conclude that lay evidence lacks credibility solely because it is unaccompanied by other contemporaneous evidence or records.  Indeed, "competent lay evidence can be sufficient in and of itself" to support a finding of service connection.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2008).  Nothing in the record suggests the Veteran's statements are not credible or competent. 

As such, the Board finds that the Veteran set foot on the ground within the border of Vietnam while en route to Thailand from his duty station in Okinawa.  Therefore, it is presumed that the Veteran was exposed to herbicides during service.  38 C.F.R. § 3.307. 

The Veteran is currently diagnosed with prostate cancer; a disability for which there is a presumption of service connection based on exposure to herbicides.

Therefore, the Board finds that service connection for prostate cancer is warranted.


ORDER

Service connection for prostate cancer, claimed as due to herbicide exposure in service is granted.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs