Citation Nr: 1339465	
Decision Date: 12/02/13    Archive Date: 12/13/13

DOCKET NO.  11-00 446	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to service connection for a prostate disorder, claimed as enlarged prostate, to include as secondary to herbicide exposure in Vietnam.

2.  Entitlement to service connection for colon cancer, to include as secondary to herbicide exposure in Vietnam.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

D. M. Donahue, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from January 1967 to March 1969, with service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which, in pertinent part, denied service connection for a prostate disorder and colon cancer.

The Veteran testified before the undersigned Acting Veterans Law Judge at a Travel Board hearing in September 2011.  A transcript is included in the claims file.  

The issue of entitlement to service connection for colon cancer is being addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran has confirmed service within the borders of Vietnam; herbicide exposure is conceded. 

2.  Competent medical evidence confirms the Veteran's diagnosed prostate cancer.

3.  Prostate cancer is presumptively recognized by VA as being causally related to herbicides used in the Republic of Vietnam.


CONCLUSION OF LAW

The criteria for service connection for prostate cancer, claimed as an enlarged prostate, to include as secondary to herbicide exposure in Vietnam, have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010)


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Assist

The Veteran's claim of entitlement to service connection for prostate cancer is granted, as explained below.  As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).


II.  Legal Criteria for Service Connection Claims

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  

Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III.  Analysis

The Veteran seeks service connection for a prostate disorder, originally claimed as an enlarged prostate, and, through his representative, contends that he is entitled to presumptive service connection for a prostate disorder as a Veteran who service in Vietnam during the Vietnam War.

A veteran, who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides.  38 C.F.R. §§ 3.307, 3.309.

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated disease, including prostate cancer, shall be service-connected even though there is no record of such disease during service.  See 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202-53,216, 53,205 (Aug. 31, 2010).

The Veteran's personnel records, namely his Form DD-214, show that he had service in Vietnam during the Vietnam era and was given the Vietnam Service Medal and Vietnam Campaign Medal.  Thus, he is presumed to have been exposed to herbicides pursuant to 38 C.F.R. § 3.307.

The analysis may be stated briefly.  The competent medical evidence of record clearly shows that the Veteran currently has prostate cancer.  Specifically, an April 2013 VA lab report indicates findings compatible with well-differentiated adenocarcinoma.  

Thus, because the Veteran currently has prostate cancer and was presumptively exposed to herbicides pursuant to 38 C.F.R. § 3.307(a)(6), presumptive service connection is warranted.

Accordingly, the Veteran's claim of service connection for prostate cancer, claimed as an enlarged prostate, is granted.


ORDER

Entitlement to service connection for prostate cancer, claimed as enlarged prostate, to include as secondary to herbicide exposure in Vietnam is granted.


REMAND

Unfortunately, a remand is required in regards to the Veteran's colon cancer claim.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326, are met.

The Veteran contends that he has a colon cancer due to active service to include exposure to herbicides.  The Board notes that VA regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Stated differently, a regulatory presumption is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure.  

The Veteran underwent a VA examination in March 2010.  However, that examiner gave no etiology opinion.  As such, the examination report is inadequate and an additional VA examination with an etiology opinion is necessary.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that '[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided'); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report 'if further evidence or clarification of the evidence...is essential for a proper appellate decision').

The Board seeks a medical opinion and explanation for that opinion based on, as appropriate, any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions.

Accordingly, the case is REMANDED for the following action:

1.  The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent medical records.

2.  Then, Veteran should be scheduled for a VA examination.  The claims file along with a copy of any pertinent evidence located in Virtual VA that is not in the claims file should be made available to and reviewed by the physician.  A copy of Board's remand decision here should be made available to and reviewed by the physician to ensure that he understands the information sought by the Board and why his previous opinion with rationale was inadequate.  The examiner should give an opinion on whether it is at least as likely as not (50 percent probability or greater) that the Veteran has current colon cancer that is related to his military service or secondary-caused or aggravated by in-service herbicide exposure.

Herbicide exposure is presumed and should be addressed.  However, the physician should further consider whether the above conditions were incurred in service, other than by herbicide exposure.  The examiner is advised the lack of inclusion of the claimed disabilities in the list of diseases presumed to be related to herbicide exposure does not necessary preclude a grant of service connection.

The examiner should provide a detailed rationale for any opinion reached.  That is, the physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions.

3.  Then, the RO should review the medical opinion and rationale to ensure that all the requested information and an adequate supporting rationale is provided, or return for such.

4.  Then, after ensuring any other necessary development has been completed, the RO or AMC should readjudicate the claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, he should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action.

The Veteran has the right to submit additional evidence and argument on this matter.  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).




______________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs