Citation Nr: 1717455 Decision Date: 05/19/17 Archive Date: 06/05/17 DOCKET NO. 11-32 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for prostate cancer, status-post prostatectomy, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD S. Vang, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before a Decision Review Officer in October 2011. A transcript of the hearing is of record. The Veteran previously requested a travel Board hearing in December 2011, but subsequently withdrew his hearing request in January 2014 and July 2014. Accordingly, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e) (2016). The claim was previously before the Board and was remanded for further development in September 2014. Subsequently, in a December 2015 decision, the Board denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In November 2016, the Court issued a memorandum decision that vacated the December 2015 Board decision and remanded the matter for further proceedings. The case was then returned to the Board. FINDINGS OF FACT 1. The Veteran was in the Republic of Vietnam during the Vietnam Era. 2. The Veteran is presumed to have been exposed to herbicides during his service in the Republic of Vietnam, and his diagnosis of prostate cancer is presumptively related to his 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 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he had active service in the Republic of Vietnam and, as such, has prostate cancer that was presumptively caused by exposure to herbicides. See March 2007 Claim. The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The appeal of service connection for prostate cancer has been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision that represents a full grant of these issues, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 (West 2014) and 38 C.F.R. § 3.307(a)(6)(iii) (2016) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 (West 2014) and 38 C.F.R. § 3.307(d) (2016) are also satisfied. 38 C.F.R. § 3.309(e) (2016). Such diseases include prostate cancer. Id. As an initial matter, the Veteran was diagnosed with prostate cancer in a September 1999 medical treatment record. VA treatment notes dated March 2007 and August 2011 indicate that, post-prostatectomy, he continues to experience residuals of prostate cancer. Here, the record contains evidence both for and against a finding that the Veteran had "boots on the ground" in the Republic of Vietnam and, as such, a finding of presumed herbicide exposure in service. Service records show that, in January 1973, the Veteran received orders to transfer from the U.S.S. America to the "nearest separation activity CONUS" to end his active service. See January 1973 Transfer and Receipt Form. Significantly, service records are silent as to the mode and method of transport that was provided to the Veteran and do not document where any stopovers may have occurred. What is uncontroverted, however, is that five days after the Veteran departed from the U.S.S. America, he reported to a naval air station in the United States. Id. Shortly thereafter, he was formally separated from active service. See DD Form 214. The Veteran asserts that on his last night on the U.S.S. America, he boarded a small mail plane bound for Da Nang Air Base in the Republic of Vietnam with the intent to transfer to a larger aircraft bound for the United States. He states that his departure to the United States was delayed by three days due to enemy attacks on Da Nang Air Base, after which he was flown to the Philippines and then to the United States. See March 2009 VA Form 21-4138; October 2011 DRO Hearing Transcript; December 2011 Substantive Appeal. The evidence in support of the claim primarily consists of the Veteran's lay recollections, which are arguably corroborated by other evidence of record. His recollection of the type of plane that he used to depart from the ship, a mail carrier, is corroborated by the existence of a Carrier Onboard Delivery Plane on the U.S.S. America. In its November 2016 Memorandum Decision, the Court noted that the delivery plane presumably handled and transferred mail and packages onto shore during the ship's combat missions. http://www.navy.mil/navydata/nav_legacy.asp?id=71. The record also contains a buddy statement from a former shipmate, C.W., who recalled that the Veteran left the U.S.S. America (CVA-66) on a small mail plane at night back to the United States. Additionally, the record indicates that the U.S.S. America conducted special operations on Yankee Station in the Gulf of Tonkin during January 1973 and that the nearest onshore American military installation on the day that the transfer purportedly took place was Da Nang Air Base. Finally, the Veteran's recollection of enemy attacks on Da Nang during a stopover is corroborated by excerpts from Air Base Defense in the Republic of Vietnam 1961-1973. The excerpts indicate that Da Nang Air Base was attacked on approximately the same days as those described by the Veteran. There is also evidence against the claim in that there is absolutely no documentation of orders directing the Veteran to go into a combat zone in order to separate from service; how the Veteran departed from the ship; and, if he departed by aircraft, where the aircraft went. Furthermore, although the Veteran's testimony has been fairly consistent during the entirety of the appeal period, the four decades between when the Veteran departed from the U.S.S. America and the present calls into question the accuracy of the Veteran's recollections. The Board finds that it would be pure conjecture to state what method or manner of transport was used during the five day period in question. However, the Board acknowledges that presuming the Veteran's superiors would not send him into a combat zone in order to separate from active service is conjecture as well. Regardless, the Court has directed the Board to "adjust its view of the case." The only thing that can be subsumed from such a nebulous instruction is that the Court has, de facto, directed to the Board to afford the Veteran more than just the benefit of the doubt and, in essence, find that the Veteran provided credible testimony and is entitled to service connection. Indeed, the deficiencies identified in the Court's Memorandum Decision cannot be reasonably resolved through further development or analysis. The Veteran had honorable service and currently has prostate cancer, post-prostatectomy, or residuals thereof. The Veteran had service in the Republic of Vietnam and his testimony has remained consistent throughout the entire appeal period. In accordance with the Court's Memorandum Decision, the Board must find the evidence at least in equipoise and as such resolve all reasonable doubt in the Veteran's favor and finds that his prostate cancer is the result of in-service herbicide exposure in the Republic of Vietnam. Accordingly, service connection for prostate cancer must be granted. ORDER Service connection for prostate cancer, status-post prostatectomy, is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs