Citation Nr: 1511697	
Decision Date: 03/19/15    Archive Date: 04/01/15

DOCKET NO.  13-09 259	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to a higher rating for posttraumatic stress disorder (PTSD). 

2.  Entitlement to service connection for residuals of prostate cancer, to include as due to exposure to herbicides.

3.  Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

N. Sonia, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1964 to July 1968.  He appeared at a Travel Board hearing with the undersigned in July 2014.  A transcript is of record.


FINDINGS OF FACT

1.  During the July 2014 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire to withdraw his appeal to the Board with regard to the issue of entitlement to a higher rating for PTSD; his contention is reflected in the written hearing transcript of record.

2.  The Veteran had service in the Republic of Vietnam, and herbicide exposure is presumed.

3.  The Veteran has been diagnosed with prostate cancer and ischemic heart disease.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to a rating in excess of 70 percent for service-connected PTSD.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014).

2.  Residuals of prostate cancer were incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).

3.  The criteria for service connection for ischemic heart disease have been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawn Claim

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

At the July 2014 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the appeal with regard to entitlement to a rating in excess of 70 percent for service-connected PTSD.  Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue.  Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed.

Parenthetically, the RO ultimately granted a 100 percent rating for PTSD subsequent to the hearing.  


Service Connection Claims

The Veteran contends that his prostate cancer and ischemic heart disease were caused by exposure to herbicides during his Vietnam service when he participated in flight missions as an Electronic Counter Measures (ECM) Operator.  He testified that his missions included landing for supplies and repairs in Vietnam.

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 (West 2014); 38 C.F.R. § 3.303(a) (2014).  

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 and ischemic heart disease.  38 C.F.R. § 3.309(e).  

In Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), the Court 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 was not entitled to presumptive service connection due to alleged Agent Orange/herbicide exposure.  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); 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 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).  

The critical question in this case is whether the Veteran did, in fact, land in Vietnam during active service, which would allow him the presumption that his prostate cancer (diagnosed in 2000 as confirmed at the November 2010 VA genitourinary examination) and his ischemic heart disease (diagnosed in 1999 as confirmed at the October 2010 VA heart examination) was the result of his exposure to herbicides.  In this regard, his statements are credible and consistent with his service.  

First, the record reflects that the Veteran had service aboard the USS Enterprise from late 1966 through mid-1967.  Research from the Defense Personnel Records Information Retrieval System (DPRIS) shows that the ship was not shown to have docked in Vietnam or that personnel from the ship stepped foot in Vietnam.  However, the Veteran himself has not indicated such was the case.  Instead, he testified that he stepped foot in Vietnam as part of aviation missions in which he would fly over Vietnam to identify armed locations and warn U.S. bombers.  He stated he landed in Da Nang and Chu Lai, Vietnam, to obtain supplies and repair aircraft.  

Indeed, the Veteran has provided numerous buddy statements corroborating that he landed in Vietnam.  In particular, a statement from J.M. indicated it was a normal part of squadron operations to fly aircrew and personnel from Cubi Point to Yankee Station between the years of 1966 and 1967 with stops at either Chu Lai or Da Nang in Vietnam.  The stops allowed for the rotation of VAW-13 personnel, refueling, and resupplying.  

Other members of VAW-13 also signed a statement in October 2013 attesting to the Veteran's presence in Vietnam in the months in 1967 while transitioning between Cubi Point in the Philippines and aircraft carriers in North Vietnam.  His testimony and these buddy statements are further supported by his service personnel records, which indicate that he indeed served at Cubi Point in the Philippines in 1967.  

Moreover, the Veteran's personnel records show that the USS Enterprise was commended for meritorious service between December 1966 and June 1967 against forces in North Vietnam, which included the use of special detective device equipped aircraft that allowed for the systemic attack of logistic-type targets, such as surface-to-air- missile sites in North Vietnam.  Again, he has confirmed service on the USS Enterprise from late 1966 through mid-1967.  Another personnel record shows that he was awarded a second gold star for twenty flight missions in Southeast Asia in June and July 1967.

Thus, the Board finds that the Veteran's testimony on these matters is credible; there is plausible and probative evidence in support of his contention that he stepped foot on the landmass of Vietnam. 

Last, the Board notes that the record demonstrates that the Veteran has received treatment for prostate cancer and ischemic heart disease, which are listed in 38 C.F.R. § 3.309(e) as diseases presumptively associated with herbicide exposure.  Indeed, the November 2010 VA genitourinary examination showed a diagnosis of prostate cancer, and while the condition was described as being in remission, the examiner noted symptoms of absent ejaculation.  Similarly, the October 2010 VA heart examination identified current symptoms of ischemic heart disease since a diagnosis in 1999.  

In sum, resolving the benefit of the doubt in favor of the Veteran, the Board finds that service connection for prostate cancer and ischemic heart disease, to include as due to exposure to herbicides during service, is warranted.

Finally, 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014); Dingess/Harman v. Nicholson, 19 Vet.  App. 473 (2006).  In this case, the Board is granting in full the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  


ORDER

Entitlement to a higher rating for PTSD is dismissed.

Service connection for residuals of prostate cancer is granted.  

Service connection for ischemic heart disease is granted.  



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs