Citation Nr: 1758090 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 15-01 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. 3. Entitlement to service connection for status post-myocardial infarction; percutaneous coronary intervention (heart condition), to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Jewish War Veterans of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, denying the claims currently on appeal. In July 2017, the Board remanded the matter, as the Veteran had not been scheduled for a hearing, as requested in his substantive appeal. Upon remand, the Veteran was accordingly scheduled for a hearing in October 2017, but was deemed a no show. To date, the Veteran has not requested that his hearing be rescheduled or provided good cause for his failure to show. Therefore, the Board finds the Veteran's request for a hearing before the Board to be withdrawn. 38 C.F.R. § 20.702(d) (2017). The Board notes that in September 2014, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of the hearing has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides during his military service. 2. There is no affirmative evidence to support a conclusion that the Veteran's diabetes mellitus, prostate cancer, or heart condition is not related to herbicide exposure. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus, to include as due to herbicide exposure is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. Service connection for prostate cancer, to include as due to herbicide exposure is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. Service connection for heart condition, to include as due to herbicide exposure is warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). As for the issues of entitlement to service connection for the claimed conditions, 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. II. Service Connection The Veteran contends that he is entitled to service connection for diabetes mellitus, prostate cancer, and a heart condition. As the evidence of record shows that the Veteran served in an area in or near the Korean Demilitarized Zone (DMZ) during his service from July 1969 to January 1970, the presumption pertaining to herbicide exposure applies. Thus, the Board notes that the Veteran is service connected for all of the claimed disabilities, to include as due to herbicide exposure. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, 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, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue."). Post-service VA treatment records show that the Veteran was diagnosed with diabetes mellitus, and that he is currently taking the following medications: metformin, glipizide, and saxagliptan. In February 2012 private treatment records, the Veteran was diagnosed with adenocarcinoma of the prostate, which is a type of prostate cancer. Private treatment records dated March 2013 indicate that the Veteran has a clinical history of coronary artery disease. The Ischemic Heart Disease Disability Benefits Questionnaire provided in April 2013 indicates that the Veteran was diagnosed with his heart condition in 2008. With respect to the second element of an in-service incurrence or aggravation of a disease or injury, the claimed injury is exposure to herbicides. The Veteran asserts that he was exposed to herbicides during his active service. The Veteran's military personnel record indicates that he served in the Eighth United States Army, which consisted of the 7th Infantry Division and the 2nd Infantry Division, from July 1969 to January 1970. A review of 74 Fed. Reg. 36640, 36641 shows that the 7th and 2nd Infantry Divisions during the time the Veteran served in South Korea are included as those listed by DOD as having been assigned or rotated to areas near the DMZ. Accordingly, as the Veteran had service during the time period proscribed by DoD, the Board finds that he is entitled to a presumption of exposure to herbicides while he was serving in Korea. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para 10(o). Turning to the third element of a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the disorders granted presumptive service connection under 38 C.F.R. § 3.309(e) for Agent Orange exposure are specified with precision. The disorder for which service connection is sought must be specified at 38 C.F.R. § 3.309(e) in order to apply the presumption of service incurrence thereunder. In this case, the disabilities specified at 38 C.F.R. § 3.309(e) include diabetes mellitus, prostate cancer, and ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). As previously stated, the Veteran has been diagnosed diabetes mellitus, prostate cancer, and coronary artery disease. Thus, the nexus presumption found in 38 C.F.R. § 3.309(e) is applicable as to all of these claims. There is no affirmative evidence to support a conclusion that the Veteran's claimed conditions are not related to herbicide exposure. Accordingly, the third element for service connection is established on a presumptive basis for all of the claimed conditions. ORDER Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is granted. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is granted. Entitlement to service connection for status post-myocardial infarction; percutaneous coronary intervention (heart condition), to include as due to herbicide exposure, is granted. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs