Citation Nr: 1330953 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 10-17 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from May 1969 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2012. A transcript is of record. FINDINGS OF FACT 1. In December 2004 the RO notified the Veteran of a November 2004 rating action denying service connection for prostate cancer, timely appellate review was not perfected, and the determination became final. 2. Giving the benefit of the doubt to the Veteran, he was exposed to herbicide agents during his active service. 3. The Veteran's prostate cancer can be presumed to be related to herbicide exposure during service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1111, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for prostate cancer on the basis of exposure to herbicides during service in Thailand. In this decision, the Board grants service connection for prostate cancer. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. 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). A veteran may be entitled to a presumption of service connection if he is diagnosed with certain enumerated diseases associated with exposure to certain herbicide agents if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Prostate cancer is among the diseases listed as presumptive to such exposure. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the Vietnam Era) shall be presumed to have been exposed during such service to an herbicide agent, 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). "Service in the Republic of Vietnam" includes 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. § 3.313(a) (2012); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). Here, the Veteran does not contend, and the record does not suggest, that he had service in Vietnam. In fact, at his April 2012 Board hearing, he specifically testified that he did not set foot in Vietnam. As such, a presumption of herbicide exposure based on service in Vietnam is not warranted. See 38 C.F.R. §§ 3.307(a)(6)(iii). Rather, the Veteran contends that he was exposed to herbicides during service at Udorn Royal Thai Air Force Base (RTAFB), in Thailand. The record confirms that he had service at Udorn RTAFB from December 1972 to May 1973 as a munitions maintenance specialist. The Veteran testified at the April 2012 hearing that he worked at a bomb dump at Udorn that was near the perimeter of the base. Given the known use of herbicide agents at the perimeters of bases in Thailand and the Veteran's credible testimony of serving near the perimeter of Udorn RTAFB, the Board finds it can be presumed that he was exposed to herbicide agents at Udorn RTAFB. See VA Adjudication Manual M21-1 MR, Part IV, Subpart ii, Ch. 2., Sec. C, part 10, para. Q. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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, 492 F.3d at 1376-77. 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 United States Court of Appeals for Veterans Claims (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). 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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). However, pursuant to 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the prior denial. As relevant records have been received since the November 2004 rating decision regarding the use of herbicide agents in Thailand, the claim for service connection is being reconsidered on the merits. See VA Compensation Service Bulletin, December 2011. The Veteran's service treatment records do not show any treatment, complaints or diagnoses related to prostate cancer. Private, post-service urology treatment records show that the Veteran was diagnosed with prostatitis in June 1973. The treatment records showed continued, occasional treatment for prostatitis. A January 2008 VA treatment note states that the Veteran underwent a prostatectomy for prostate cancer in 2004. As discussed above, the Board finds that the evidence is at least in a state of relative equipoise regarding whether the Veteran was exposed to herbicide agents while serving at Udorn RTAFB. Since the record shows that the Veteran has had prostate cancer and it is a disorder for which presumptive service connection is warranted on the basis of herbicide exposure, the Veteran's claim is granted. 38 C.F.R. §§ 3.307, 3.309. ORDER Service connection for prostate cancer is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs