Citation Nr: 1338997 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 08-08 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for prostate cancer with loss of use of a creative organ, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to April 1969 and from January 1971 to November 1985. He received the Republic of Vietnam Gallantry Cross, among other decorations, associated with his more than twenty years of active service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2011, the Board remanded the Veteran's claim to further develop his assertion that he stepped foot on land in Vietnam. Review of the record reflects that such development was completed and the claim was readjudicated by the RO. Therefore, the Board is satisfied that there has been substantial compliance with the remand directives and appellate review may continue. See Stegall v. West, 11 Vet. App. 268 (1998). In addition, in February 2011, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed at the Board. As VA regulations require that the VLJ who conducted the hearing must participate in any decision made on appeal, the Veteran was offered a new hearing before a new VLJ in a November 2012 letter. The letter noted that if no response was received within 30 days, the Board would assume the Veteran did not want another hearing and proceed accordingly. The Veteran did not respond to the hearing clarification letter. As such, the Board will continue to adjudicate this appeal. The Board has not only reviewed 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. FINDING OF FACT The evidence demonstrates that the Veteran stepped foot in Vietnam during active service and is presumed to have been exposed to Agent Orange. CONCLUSION OF LAW The criteria for service connection for prostate cancer with loss of use of a creative organ, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board is granting the benefit sought by the Veteran. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify, the duty to assist, or the duties under 38 C.F.R. 3.103(c)(2), such error was harmless and will not be further discussed. Service Connection The Veteran contends that he stepped foot on land in Vietnam while serving as a Crew Chief in Southeast Asia, and that such exposure warrants service connection for prostate cancer with loss of use of a creative organ. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a)(2013). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101 , 1112, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Moreover, 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). "Service in the Republic of Vietnam" includes service in the waters offshore and in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. 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. Furthermore, 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. Turning to the evidentiary record, the Veteran has been diagnosed with prostate cancer, and a prostatectomy was performed in November 2005, approximately twenty years after service separation. Moreover, May 2006 VA treatment records indicate the Veteran complained of impotency problems. However, the Veteran has not contended that his conditions began in service or within one year of discharge. Instead, on his VA Form 21-526, the Veteran indicated that his prostate cancer with loss of use of a creative organ began in 2005, which is also supported by medical evidence of record. Thus, the critical question in this case is whether the Veteran was exposed to herbicides when he was a Crew Chief in Southeast Asia. In this regard, the undersigned finds that Veteran's the statements are credible and consistent with his service. Specifically, the Veteran has asserted that as a Crew Chief, he was on flights in which government VIPs would be transported from a base in Thailand or the Philippines to Vietnam in order to attend meetings or observe combat missions. This was not the primary duty, but, rather, would occur after a refueling mission. The Veteran stated such VIPs could include colonels who wanted to observe refueling missions. The Veteran also testified that he would occasionally have to wait for the VIPs in Vietnam, either for a few hours or sometimes overnight, before escorting them back to Southeast Asia. The Veteran's personnel record shows he was stationed in Thailand in December 1968, and several TDY duty dates were recorded in a foreign service summary. Unfortunately, the TDY duty dates are illegible. However, the Veteran's personnel records indicate that his aviation duties involved working with KC-135s from 1962 through 1975. Specifically, a performance evaluation from January 1973 contains a reference to the use of a VIP aircraft and confirms the Veteran was part of a higher headquarter mission in Southeast Asia. The evaluation specifically states that the Veteran's aircraft was selected as the VIP aircraft due to his superior performance. At that time, the Veteran was Crew Chief on the KC-135 Aircraft, and his command was identified as Lockbourne Air Force Base, Ohio. The Board notes the August 2011 correspondence from an archivist with the Air Force Historical Research Agency, which found that the Veteran's TDY duty of out Lockbourne is inconsistent with historical data. In particular, the archivist indicated operational KC-135s were not used to ferry VIPs because such VIPs had their own aircraft or Military Airlift Command provided an aircraft. The archivist also noted the primary role of KC-135s involved refueling missions. Similarly, the Veteran has also indicated that the primary role of the KC-135s was for refueling purposes. He testified that VIPs would want to observe the refueling process themselves and that he would occasionally pick up or drop off VIPs as part of his refueling mission. In addition, in a January 2010 statement, the Veteran indicated that his name was handwritten on each flight manifest when he flew as Crew Chief because he was not part of the flight crew; he was never sure where the aircraft would go after completing its mission. In short, the Veteran's statements have been clear and consistent. The Board has no reason to dispute his recollection of the facts of his honorable service during the Vietnam War. Moreover, the Veteran's performance evaluation from 1973 clearly indicates that his plane was selected to escort VIPs. Other evidence of record supporting the Veteran's claim is pay records from the Defense Finance and Accounting Service that indicate he received incentive payments. The Veteran's ex-wife also stated that her husband told her that he would occasionally spend time in Vietnam during service. Based on the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran set foot in Vietnam during active service. See 38 U.S.C.A. §§ 1116, 5107; 38 C.F.R. §§ 3.102, 3.307(a)(6) . It is presumed that he was exposed to Agent Orange and prostate cancer is presumptively linked to such exposure. The benefit sought is therefore granted. ORDER Entitlement to service connection for prostate cancer with loss of use of a creative organ, as due to herbicide exposure, is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs