Citation Nr: 1333986 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-46 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to exposure to Agent Orange. 2. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: John S. Berry, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION Veteran served on active duty from December 1971 to December 1975. With regard to the claim of service connection for prostate cancer, this matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement (NOD) was received in March 2010. A statement of the case (SOC) was issued in September 2010. The Veteran perfected his appeal in October 2010. The Veteran testified before the undersigned at a hearing held in October 2011. With regard to the claim for PTSD, this matter is before the Board on appeal from a March 2011 rating decision. A NOD was received in June 2011. The procedural deficiencies regarding this claim are addressed in the REMAND portion of the decision below and the claim is REMANDED to the Regional Office. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran was exposed to herbicide agents during his active military service in Vietnam. 2. The Veteran has been diagnosed with prostate cancer. CONCLUSION OF LAW The Veteran's prostate cancer is presumed to have been incurred during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, including Virtual VA (VA's electronic database), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The issue before the Board involves a claim of entitlement to service connection. 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 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, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as malignant tumors, will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent disabling within one year after service. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309(a). Other diseases initially diagnosed after service may also be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). Applicable law also provides that a Veteran who, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed 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)(6)(iii). And if a Veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases, including prostate cancer, shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met. "Service in the Republic of Vietnam" includes military service in the waters offshore and military service in other locations if the conditions of the military service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). It is established law that a Veteran must have set foot on the land mass of Vietnam, or have been present in the inland waterways of that country during the statutory period (so-called "brown water" naval activity) in order to be considered to have had qualifying military service in Vietnam and, in turn, presumed exposure to herbicides. See Haas, 525 F.3d 1168. VA's General Counsel has held that service on a deep-water naval vessel off the shores of Vietnam may not be considered qualifying military service in Vietnam. VAOPGCPREC 27-97 (July 23, 1997). VA reiterated its position that service in deep-water naval vessels offshore of Vietnam (as opposed to service aboard vessels in inland waterways of Vietnam ("blue water" versus "brown water")) is not included as "service in the Republic of Vietnam" for purposes of presumptive service connection for Agent Orange diseases. See 66 Fed. Reg. 23166 (May 8, 2001). Thus, VA made a distinction between military service offshore ("blue water") and those Veterans (referred to as "brown water" Veterans) who served aboard smaller river patrol and swift boats that operated on the brown-colored rivers, canals, estuaries, and delta areas making up the inland waterways of Vietnam. Brown water Navy and Coast Guard Veterans receive the same presumption of herbicide exposure as Veterans who served on the ground in Vietnam. VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Part 10.k. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks entitlement to service connection for prostate cancer. It is not in dispute that the Veteran was diagnosed with prostate cancer. The critical question in this case is whether or not the Veteran was exposed to herbicide agents during active duty service. The Veteran contends that he went ashore in Vietnam during the time he served onboard the USS Ranger (CVA-61). He specifically contends that from November 1972 to June 1973 and from March 1974 to October 1974 he was part of the flight crew that would depart the ship and land in Vietnam for the purpose of picking up mail and/or various dignitaries to be brought back to the ship. Service personnel records confirm that he was in fact stationed aboard the USS Ranger from November 1972 to December 1975. A request to the U.S. Army and Joint Services Records Research Center (JSRRC) confirmed the USS Ranger was stationed in the Gulf of Tonkin from December 1972 to May 1973. The JSRRC also confirmed that aircraft were launched and recovered from the ship; however, did not confirm the destinations or passenger names. The Veteran's personnel records further show the Veteran served as an air crewman, although his military occupational specialty (MOS) was aircraft mechanic. The Veteran submitted the lay statements of three former servicemen who served aboard the USS Ranger with him, including his Commanding Officer. Each of these statements confirmed the Veteran served aboard the USS Ranger in 1973 and participated in multiple flights from the ship to multiple cities in Vietnam. Additionally the Veteran testified that as a crewman he would fly a C1A utility plane on and off the aircraft carrier to Vietnam, picking up cargo, weapons, and people. The Board finds the Veteran's statements to be competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). He has provided a generally consistent account of his service which has been corroborated by servicemen who knew the circumstances of his service. While the service records do not indicate the Veteran set foot in Vietnam, he testified, and three former servicemen - including his commanding officer - confirmed, that he had in fact done so on several occasions. As such, the Board finds that the evidence is at least in equipoise to show that the Veteran was present in Vietnam for the purposes of presumptive exposure to Agent Orange. Based on the foregoing, the Board finds that entitlement to service connection for prostate cancer is warranted. The Veteran was diagnosed with prostate cancer and there is evidence that he was presumptively exposed to Agent Orange during his service in Vietnam. As prostate cancer is a disability for which service connection is afforded on a presumptive basis based upon exposure to herbicides, entitlement to service connection for prostate cancer is granted. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency, in view of the fact that the full benefits sought by the Veteran are being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letters dated in April 2009 and January 2010, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection for prostate cancer is warranted. The appeal is granted to this extent. REMAND A March 2011 rating decision granted service connection for PTSD, and assigned a 30 percent evaluation. The Veteran subsequently submitted a notice of disagreement with the evaluation assigned for PTSD and sought a full grant of benefits. In April 2013, the RO increased the assigned rating to 70 percent. As this was not a full grant of benefits, the appeal is still pending and the Board notes that a statement of the case has not been issued on this matter. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). This matter must, accordingly, be remanded for issuance of a statement of the case. Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case addressing the issue of entitlement to an initial evaluation in excess of 70 percent for PTSD. The appellant and his representative should be afforded the appropriate period of time to respond. This matter should be returned to the Board only if the Veteran or his representative submits a timely substantive appeal. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs