Citation Nr: 1327408 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 13-03 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for prostate cancer, claimed as secondary to herbicide exposure. 2. Entitlement to service connection for a hearing loss disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from August 1955 through March 1958 with subsequent service in the Army Reserves and the Air National Guard of Georgia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Original jurisdiction over this matter was subsequently transferred to the RO in Montgomery, Alabama. A timely Notice of Disagreement (NOD) was received from the Veteran in November 2010. After a Statement of the Case (SOC) was issued later that month, the Veteran perfected his appeal in December 2012, via VA Form 9 substantive appeal. The Veteran testified during a May 2013 video conference hearing which he attended from the Montgomery RO. A transcript of this testimony is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has prostate cancer that was initially diagnosed in February 2010. 2. The evidence is in relative equipoise as to the question of whether the Veteran served in Vietnam in 1966; hence, resolving doubt as to that question in the Veteran's favor, the Board finds that the Veteran did serve in Vietnam in 1966. 3. The Veteran is presumed to have been exposed to herbicides during his service in Vietnam and his prostate cancer is presumed to have resulted from his in-service herbicide exposure. 4. At his May 2013 hearing, the Veteran, through his accredited representative, indicated that he wished to withdraw his appeal of the denial of service connection for a hearing loss disability and tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer, claimed as secondary to herbicide exposure, have been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for a withdrawal of the Veteran's substantive appeal of the denial of service connection for a hearing loss disability and tinnitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.200 , 20.202, 20.204(b), (c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to the issue on appeal, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. Service Connection for Prostate Cancer Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as malignant tumors, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In addition to the foregoing service connection principles, the Board notes that 38 C.F.R. § 3.309(e) identifies specific diseases that shall be service-connected for those veterans who were exposed to an herbicide agent during active military, naval, or air service, even in the absence of any record of such disease occurring during service, provided that certain requirements under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. The diseases listed under 38 C.F.R. § 3.309(e) includes prostate cancer. Subject to the foregoing, the Board points out that, absent affirmative evidence to the contrary, there is an additional presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). Private treatment records from Birmingham-Shelby Urology and Dr. D.S.W. show that the Veteran was initially diagnosed with prostate cancer following a biopsy in February 2010. In April 2010, the veteran underwent a robotic assisted laparoscopic prostatectomy which confirmed the presence of a Stage II prostate cancer. However, these records do not provide any opinion as to whether the Veteran's prostate cancer is related in any way to his active duty service. In his claims submissions, the Veteran alleges that his prostate cancer resulted from purported service in Vietnam. During his May 2013 video conference hearing, he testified that he served the military occupational specialty (MOS) of transport pilot. He testified further that he was stationed in Charleston, South Carolina, when he performed a mission in which he flew a C-124 cargo plane to Tan Son Nhut Air Base in Saigon, Vietnam. He specifically recalled that he had stops at Travis Air Force Base, California; Hickam Air Force Base, Hawaii; Wake Island; and the Philippines before arriving at Tan Son Nhut Air Base on August 29, 1966. He testified that the whole trip took two weeks and that he spent no more than two hours on the ground in Vietnam before leaving for his return flight to Charleston. Hence, if the evidence supports the Veteran's assertions concerning service in Vietnam, then service connection for his prostate cancer may be presumed to have resulted from his in-service herbicide exposure. The Veteran's National Guard personnel records confirm that the Veteran served as a transport pilot while stationed at Charleston, South Carolina from 1962 through 1967. Essentially consistent with the Veteran's assertions, a performance review report, pertinent to the Veteran's National Guard service from August 1965 through July 1966, reflects that the Veteran flew missions over continental airways and worldwide oceanic air routes and that he "actively participated in an airlift mission to Southeast Asia..." His service personnel records also include several periods of active duty in the 1960s. Although the Veteran's service personnel records do not expressly show that the Veteran flew to Vietnam, the Board nonetheless finds that this evidence, when considered in conjunction with the Veteran's detailed and credible hearing testimony, establishes that it is at least as likely as not that the Veteran did fly a transport mission to Vietnam sometime during 1966. (His service personnel records confirm 15 days of active duty in June 1966). As the evidence concerning the question of whether the Veteran served in Vietnam is in relative equipoise, the Board is compelled to resolve any doubt as to that question in the Veteran's favor. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49. In view of the above, the Veteran is presumed to have been exposed to herbicides during his active duty service. 38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii). In doing so, the Board is mindful that the Veteran acknowledges that he was on the ground in Vietnam for no more than two hours. Nonetheless, there is no provision under the applicable regulations which requires that veterans have been present in Vietnam for any prescribed period of time in order for the presumption of herbicide exposure to apply. Given this presumed herbicide exposure, in the absence of any evidence to the contrary, the Board also presumes that the Veteran's prostate cancer is related to the Veteran's in-service herbicide exposure. 38 C.F.R. § 3.309(e). In view of the foregoing, the Veteran is entitled to service connection for prostate cancer. To that extent, this appeal is granted. Service Connection for Hearing Loss and Tinnitus An appeal consists of a timely filed Notice of Disagreement in writing, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2012). A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202 , 20.204(b) (2011). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. See 38 C.F.R. § 20.204(b) (2012). In this case, the Veteran disagreed with the denial of service connection for hearing loss and tinnitus and perfected an appeal as to those issues. At his May 2013 hearing, the Veteran, through his representative, indicated that he wished to withdraw his appeal of the denial of service connection for these issues. The Board finds that this statement qualifies as a valid withdrawal of the issues on appeal. See 38 C.F.R. § 20.204. Therefore, in light of the Veteran's withdrawal of his appeal of the denial of service connection for a hearing loss disability and tinnitus, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the appeal of the denial of service connection for these disabilities will be dismissed. (CONTINUED ON NEXT PAGE) ORDER Service connection for prostate problems, to include prostate cancer, claimed as secondary to herbicide exposure, is granted. The appeal of the denial of service connection for a hearing loss disability is dismissed. The appeal of the denial of service connection for tinnitus is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs