Citation Nr: 1420587	
Decision Date: 05/07/14    Archive Date: 05/21/14

DOCKET NO.  10-23 243	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to service connection for multiple myeloma.


REPRESENTATION

Veteran represented by:	Marine Corps League


ATTORNEY FOR THE BOARD

Nicole L. Northcutt, Counsel









INTRODUCTION

The Veteran, who is the appellant, served on active duty from July 1966 to May 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2013, the Board remanded the case.


FINDING OF FACT

The Veteran was presumably exposed to Agent Orange in December 1969 in Vietnam and multiple myeloma is presumed to have been incurred in service.


CONCLUSION OF LAW

The criteria for service connection for multiple myeloma due to exposure to Agent Orange have been met.  38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2013).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  As the Board is granting the claim of service connection for multiple myeloma, VCAA compliance need not be addressed further.



REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110.

Whereas here, it is asserted that service connection should be granted due to Agent Orange exposure, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to 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(a)(3); 38 C.F.R. §§ 3.307, 3.309.  

If a veteran was exposed to Agent Orange, certain diseases, including multiple myeloma, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§3.307(a)(6), 3.309(e).

Evidentiary Standards

VA must give due consideration to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a).

Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).


The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board.")).

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

Evidence and Analysis

The Veteran is currently diagnosed with multiple myeloma, which was first detected by a bone marrow aspiration in April 2002, and the oncology records show that when diagnosed multiple myeloma was manifested to a compensable degree.

The Veteran's DD Form 214 shows that served on active duty from July 1966 to May 1970 and that he was assigned to the U.S.S. Belknap. 

The ship logs from the U.S.S. Belknap show that on December 1, 1969, the ship received crew members who had been ashore in Vietnam.  The Veteran has submitted a statement from a fellow ship mate, who stated that he operated the boat that ferried crew members stationed on the U.S.S. Belknap to DaNang on December 1, 1969.  Bolstering the engineer's recollection of the event is a copy of a letter postmarked on December 1, 1969, that the ship mate wrote to his wife about an imminent trip to DaNang.  

The Veteran states he was on shore leave from the U.S.S. Belknap in DaNang, Vietnam.  






The Veteran is competent to state that he was on shore leave in Vietnam and his statement is consistent with the ship logs for the U.S.S. Belknap and with the statement of a fellow ship mate, who operated the boat that ferried members of the ships' crew to shore.  And the Board finds the Veteran's statement credible.  

As the medical evidence establishes a current diagnosis of multiple myeloma and as there is competent and credible lay evidence that the Veteran went ashore in DaNang, Vietnam, in December 1969, the Board concludes that the Veteran is presumed to have been exposed to Agent Orange while ashore in Vietnam and service connection multiple myeloma is presumed to have been incurred in service due to exposure to Agent Orange.  38 U.S.C.A. § 1116(a); 38 C.F.R. §§3.307(a)(6), 3.309(e). 


ORDER

Service connection for multiple myeloma is granted.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs