Citation Nr: A21019802 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 201217-131949 DATE: December 13, 2021 ORDER The claim of entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is granted. FINDING OF FACT The Veteran served in the Republic of Vietnam during the Vietnam War and has been diagnosed with prostate cancer. CONCLUSION OF LAW The criteria to establish service connection for prostate cancer, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service with the United States Air Force from January 1965 to October 1968. This matter is before the Board of Veteran's Appeals (Board) from a January 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for prostate cancer. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Veteran has elected this modernized review system In September 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of service connection for prostate cancer most recently addressed in a September 2019 rating decision. In January 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. On the Decision Review Request Board Appeal Notice of Disagreement (NOD), VA Form 10182, received in January 2021, the Veteran requested the direct review docket, allowing the Board to decide the claim based on the record as of the date of the agency of original jurisdiction (AOJ) decision on appeal 38 C.F.R. § 20.301. This decision has been written consistent with the new AMA framework. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of service connection for prostate cancer, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes the Veteran's claims of increased rating for posttraumatic stress disorder (PTSD) and service connection for a heart condition are in a different appeal stream through the AMA. These claims will not be addressed herein and will be addressed in a separate Board decision. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents The Veteran contends that he is entitled to service connection for prostate cancer as caused by exposure to herbicide agents in service. Having reviewed all of the relevant evidence of record, the Board concludes that the Veteran's prostate cancer warrants service connection as he was presumptively exposed to herbicide agents during the Vietnam War. Procedurally, the Veteran's claim for prostate cancer was denied in a November 2016 rating decision and the Veteran filed a request to reopen his claim in October 2017. His claim was denied in a November 2017 rating decision as no new and material evidence was found. The Veteran then filed a supplemental claim in July 2019, and the September 2019 rating decision reopened the Veteran's claim but ultimately denied the claim for service connection for prostate cancer. In the September 2019 rating decision, the RO made favorable findings that prostate cancer is a condition that has been presumptively linked to herbicide exposure and that the Veteran was diagnosed with prostate cancer. The RO in the January 2020 rating decision also made a favorable finding of reopening the Veteran's claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. "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. 38 C.F.R. § 3.307(a)(6). If a veteran was exposed to herbicide agents during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309(e) shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and PCT shall have become manifest to a degree of 10 percent or more within one year of separation, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to herbicide agents during active air service. 38 C.F.R. § 3.307(a)(6)(ii). The Board finds the Veteran has the met the requirements of having service in the Republic of Vietnam during the applicable period and has been exposed to herbicide agents. The Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience, if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. When there is an approximate balance between positive and negative evidence, equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's military personnel records do not list any location in Vietnam among the Veteran's assigned duty stations during active service. However, he asserts that he was exposed to herbicide agents while flying missions in and out of the Republic of Vietnam. Those records reveal that he was stationed in Taiwan from January 1967 to February 1968. His performance evaluation reports for that time period demonstrated that he was an assistant crew chief for C-130E aircraft trained in both ground handling and servicing, and participated in all facets of the phase inspection concept on the aircraft. His DD Form 214 indicates that his military occupational specialty (MOS) was as an aircraft mechanic and shows receipt of commendations of the Vietnam Campaign Medal and Vietnam Service Medal. The Veteran's military personnel records also show that he was awarded the Vietnam Campaign Medal and the Vietnam Service Medal. The certificates for the awards specifically stated the Veteran, "has served as an aircrew member in one or more aerial flights above Vietnam or contiguous waters in direct support," and the Veteran "served outside the geographic limits of South Vietnam and contributed direct support to the Republic of Vietnam Armed Forces for six months." The Veteran submitted multiple statements that indicated while he was stationed in Taiwan, he was required to spend time at Cam Ranh Bay Air Force Base and several times "had deadhead out of Nha Trang Air Force Base South Vietnam." The Veteran also specifically indicated he was assigned to the 776 Tactical Airlift Squadron which required him to go in and out of areas of Vietnam. The Veteran provided a list of his operations in and out of Vietnam, which included multiple shuttles and assignments in and out of Vietnam. The Veteran testified that he had to load up materials and bodies when he was in Vietnam. See April 2021 Hearing Transcript at 6. The Board finds that the Veteran is competent to report service missions and time spent in the Republic of Vietnam. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Absent affirmative evidence to the contrary, and these specific circumstances, the Board also finds such statements to be credible. In addition, the Board recognizes that the Veteran is service-connected for PTSD. A June 2019 Disability Benefits Questionnaire notes that the Veteran was a crew chief and rode in the cargo planes that went to Vietnam to pick up wounded soldiers and the bodies of soldiers who had been killed, and that this stressor supported a PTSD diagnosis. Upon a review of the foregoing, the Board finds the evidence of service in Vietnam to be in equipoise. As such, he is presumed to have been exposed to herbicide agents. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Post-service treatment records confirm the Veteran's diagnosis of prostate cancer. Therefore, service connection is warranted for prostate cancer and the Veteran's claim for service connection is granted. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.