Citation Nr: 1630984 Decision Date: 08/04/16 Archive Date: 08/11/16 DOCKET NO. 13-09 585A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for prostate cancer. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to September 1969 and from February 1975 to October 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied entitlement to service connection for prostate cancer. In May 2016, the Veteran testified before the undersigned Veterans Law Judge during a Board videoconference hearing. A transcript of the hearing is of record. While the Veteran was previously represented by Disabled American Veterans (DAV), he revoked that representation in December 2015 and indicated he will represent himself. The Board recognizes that change in representation. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran was directly exposed to herbicides while serving aboard the USS Providence. 2. The Veteran has been diagnosed with prostate cancer. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board is granting service connection for prostate cancer by this decision, which represents a full grant of the benefit sought on appeal. As such, no discussion of VA's duties to notify and assist is necessary, as any notice defect or duty to assist failure is harmless. Accordingly, the Board will address the merits of the claim. Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. To establish entitlement to service-connected compensation benefits, a claimant 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Pertinent VA law and regulations provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a) (6)(iii). Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Prostate cancer is one of the listed diseases. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran contends that he was exposed to Agent Orange while serving aboard the USS Oklahoma City, which was stationed in the waters of Vietnam. He argues that herbicide exposure should be presumed because the USS Oklahoma City served in Danang, and also grounded in January 1969 near the mouth of the Song Cua Dai River. Alternatively, the Veteran asserts direct exposure to herbicides aboard the USS Providence from working in close proximity to a fleet combat artist, J.C.R., who "was routinely transported in-country to do his photography and then back to the ship" to work on his sketches and paintings. The Veteran reports that they shared a workspace in an enclosed wing, and that the artist's equipment was also stored in the shared space. The Veteran's service personnel records confirm that he served with the Flag Allowance Commander, Seventh Fleet, aboard the USS Providence from June 1967 to November 1968, at which time he was transferred to the USS Oklahoma City. The Veteran has also submitted photographs from the USS Providence cruise book showing him and the artist, J.C.R., working side by side. Also submitted were various photographs taken by J.C.R. in Vietnam, establishing his boots on ground there, as well as an excerpt from a biography showing that J.C.R. served in Vietnam, with the 7th Fleet "as an official Navy [a]rtist to document naval activities in-country and offshore." Notably, the evidence submitted by the Veteran concerning J.C.R. is consistent with other information found online, including an April 1990 article in a Naval publication, All Hands Magazine of the U.S. Navy entitled "A Life Committed to Art." Post-service private treatment records document that the Veteran was diagnosed with prostate cancer in March 2003 for which he underwent a radical prostatectomy. More recent treatment notes dated in July 2016 show recurrence. In support of his claim, the Veteran submitted a May 2016 statement from his private physician documenting the Veteran's possible exposure to Agent Orange, a known carcinogen, and indicating that workplace exposure to a carcinogen could explain the Veteran's early onset of prostate cancer absent a family history of prostate cancer and given the Veteran's age at diagnosis and ethnicity. Similarly, in July 2016, a different private physician, who notably chairs the urology and immunology departments at the Mayo Clinic, found that the Veteran's sole risk factor for prostate cancer here is occupational exposure to a carcinogen and opined that it is at least as likely as not that the Veteran was exposed to Agent Orange given his medical history, absence of family history of prostate cancer, age at diagnosis, and ethnicity. Upon consideration of the Veteran's statements, and the evidence of record, the Board finds that it is reasonable to assume that the Veteran was directly exposed to herbicides. There is competent and credible evidence that the Veteran worked in close proximity to J.C.R. on the USS Providence, including photographs, and J.C.R. is shown by competent and credible evidence to have routinely had boots on ground in Vietnam. Furthermore, the May 2016 the July 2016 physicians' statements tend to support the Veteran's account, as they point to a potential occupational carcinogenic exposure as the cause of the Veteran's early onset prostate cancer in the absence of other named risk factors. The Board notes the September 2009 National Personnel Records Center response indicating that it is unable to conclude whether or not the Veteran served in the Republic of Vietnam as there is no conclusive proof of in-country service. However, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether the Veteran was directly exposed to herbicides, and as a result, the Veteran shall be given the benefit of the doubt. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102; Ortiz, supra. The Veteran has competently testified that he served in an enclosed workspace on the USS Providence with an individual who went back and forth between Vietnam and the ship and is thereby presumed to have been exposed to herbicides. In this case there is no evidence of record suggesting otherwise, and the Board finds no reason to doubt the credibility of the Veteran. In sum, there is at least an approximate balance of positive and negative evidence of record as to the Veteran's assertions regarding exposure to herbicides, and there is evidence that he has a current diagnosis of prostate cancer. As a result, service connection for prostate cancer on a presumptive basis is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.309(e); Ortiz, supra. ORDER Service connection for prostate cancer is granted. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs