Citation Nr: 1334292	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-40 626	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. Sonia, Associate Counsel

INTRODUCTION

The Veteran served on active duty from December 1965 to December 1971 as well as thirteen prior years of active service.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In September 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is of record. 

The Board has not only viewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  

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).


FINDING OF FACT

The Veteran was exposed to herbicides during the course of his Vietnam service. 


CONCLUSION OF LAW

The criteria for service connection for prostate cancer have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).





REASONS AND BASES FOR FINDING AND CONCLUSION

In this case, the Veteran contends that his prostate cancer was caused by exposure to herbicides, including Agent Orange, to which he was exposed during his Vietnam service.  Specifically, the Veteran has indicated he was exposed to herbicides while working as an aircraft mechanic in Da Nang Airport when he was stationed on the aircraft carrier USS Coral Sea.  

In addition, the Veteran indicated that he went to Da Nang Air Base to retrieve uniforms. 

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 1137 (West 2002); 38 C.F.R. § 3.303(a) (2013).  

A veteran who served in the Republic of Vietnam during the Vietnam War is presumed to have been exposed to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). 

Certain diseases have been associated with exposure to herbicide agents and will be presumed by VA to have been incurred in service even though there is no evidence of such disease during such period of service, including, among others, prostate cancer.  38 C.F.R. § 3.309(e).  

In Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. 

A Veteran who never went ashore from a ship on which he served in Vietnamese coastal waters is not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure.  See Haas at 1193-1194; see also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace);  see also VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). 

In addition, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM).  Id.  

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.  38 U.S.C.A.  § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 

The critical question in this case is whether the Veteran did, in fact, go ashore to perform aircraft maintenance and to retrieve uniforms, which would allow the Veteran the presumption that his prostate cancer (diagnosed in 2005) is the result of his exposure to herbicides.  In this regard, the undersigned finds that Veteran's statements are credible and consistent with his service.  

First, personnel records indicate that the Veteran served on the USS Coral Sea as an aircraft mechanic, which supports the Veteran's assertion that he worked on aircraft.

Moreover, findings from VA's Joint Services Records Research Center (JSRRC) Coordinator indicate that the Veteran was attached to units that could have been assigned to ships or shore, including the USS Coral Sea, which was credited with Vietnam service during 1968 and 1969.  This correlates with the Veteran's detailed highly consistent descriptions of his duties and tour locations in his March 2010 Notice of Disagreement in which he stated the USS Coral Sea deployed in 1968 and returned in 1969.  The Veteran also testified at the September 2013 hearing that he was in Da Nang in May 1969 associated with his service, in his role as an aircraft mechanic.  His testimony was clear, consistent, and the Board has no reason to dispute his recollection of the facts of his honorable service during the Vietnam War.     

In sum, the evidence of record supports the Veteran's claim for service connection for prostate cancer, as presumed under law to have been caused by exposure to herbicides.  The benefit sought is therefore granted. 

ORDER

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


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs