Citation Nr: 1410948	
Decision Date: 03/14/14    Archive Date: 03/20/14

DOCKET NO.  11-34 068	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for prostate cancer.


REPRESENTATION

Appellant represented by:	Ralph J. Bratch, Attorney at Law


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel




INTRODUCTION

The Veteran had active military service from September 1963 to June 1967.  He passed away during the pendency of the appeal in December 2011; his surviving spouse has been properly substituted as the appellant in the instant case. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.


FINDINGS OF FACT

1. Resolving all doubt in the appellant's favor, the Veteran served within the Republic of Vietnam; exposure to herbicides is presumed.

2. The Veteran was diagnosed with prostate cancer, a disability presumed due to herbicide exposure.


CONCLUSION OF LAW

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







REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)).  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Analysis

The appellant asserts service connection is warranted for prostate cancer on a presumptive basis as directly related to active service.  Specifically, the Veteran asserted that he served in the Republic of Vietnam and was exposed to Agent Orange, an herbicide agent.

Certain diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue.  38 U.S.C.A. § 1116(a) (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013).  A Veteran who, during active military, naval, or air service, 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 during such service 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 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 service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  Id. 

The Veteran's service records does not explicitly indicate that he served within the Republic of Vietnam.  Rather, it was the Veteran's assertion that he was assigned to Vietnam on temporary duty (TDY) while stationed in the Philippines.  Performance records note the Veteran spent in excess of 200 days TDY to Southeast Asian sites between June 1965 and June 1966 in support of the 509th Fighter Interceptor Squadron.  Official records of these TDY assignments are not associated with the claims file.  In support of his claim, the Veteran submitted a number of lay statements, including that of D.B.  In his January 2011 statement, D.B. stated that he and the Veteran were based at Tan Son Nhut in Vietnam at the same time and, while it was a very large base, he remembers driving to see the Veteran one time while they were both in Vietnam.

The Board is left with a situation where essentially the only evidence pertaining to the Veteran's service within the Republic of Vietnam are the lay statements submitted in support of his claim.  It appears that pertinent service personnel records regarding specific TDY assignments are not available, and the Veteran has submitted lay statements from other service members stating they served with him in Vietnam.  The Board finds that there is a genuine state of equipoise of the positive and negative evidence.  In such a case, the question is to be resolved in the appellant's favor.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Resolving all doubt in the appellant's favor, the Board finds the Veteran did service within the Republic of Vietnam; therefore, exposure to herbicides is presumed.  See 38 C.F.R. § 3.307(a)(6)(iii).

Diseases associated with exposure to Agent Orange include, among others, prostate cancer.  See 38 C.F.R. § 3.309(e) (2013).  The medical evidence of record, including the report of a September 2010 VA examination, indicates the Veteran was diagnosed with prostate cancer prior to his death.

As the Veteran was diagnosed with prostate cancer and exposure to herbicides is presumed, service connection prostate cancer is warranted.  See 38 C.F.R. § 3.309(e).


ORDER

Service connection for prostate cancer is granted.




____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs