Citation Nr: 0405959 Decision Date: 03/05/04 Archive Date: 03/19/04 DOCKET NO. 03-00 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for prostate cancer secondary to Agent Orange (herbicide) exposure. ATTORNEY FOR THE BOARD A. Jaeger, Associate Counsel INTRODUCTION The veteran served on active duty from July 1953 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. All evidence necessary for review of the issue on appeal has been obtained, and VA has satisfied the duty to notify the veteran of the law and regulations applicable to his claim and the evidence necessary to substantiate his claim. 2. The veteran's account of having flown on missions as a pilot to many airfields, to include those within the Republic of Vietnam, is credible and consistent with the circumstances of his military service. 3. With the resolution of doubt in the veteran's favor, the veteran had active military service in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to an herbicide agent, Agent Orange, during such service. 4. The medical evidence of record reveals that the veteran has a current diagnosis of prostate cancer, a disease presumptive to herbicide-exposed veterans. CONCLUSION OF LAW Prostate cancer is presumed to have been incurred as a result of active service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and its implementing regulations, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003) are applicable to the veteran's claim. The Act and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In this decision the Board's decision constitutes a complete grant of the benefit sought on appeal. As such, the Board finds that no further action is required to comply with the VCAA and the implementing regulations. The veteran contends that he incurred prostate cancer as a result of his service in Vietnam, specifically as a result of his exposure to Agent Orange. A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service connection based on herbicide exposure will be presumed for certain specified diseases, including prostate cancer, which manifests to a compensable degree at any time after service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). "Service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 C.F.R. § 3.313. The veteran's service personnel records reflect that he served as a pilot of a troop carrier in the 6th Troop Carrier Squadron at Tachikawa Air Base (AB), Japan, from March 1960 to August 1963. Thereafter, the veteran was assigned to Hunter Air Force Base (AFB) in Georgia, U.S., as a pilot of a troop carrier from August 1963 to March 1964. During these times, the veteran contends that he flew into Saigon repeatedly, as well as, from 1960 to 1963, just about every medium to large airfield, including Tan Son Nhut and Hue, in Vietnam. He also contends that while stationed in Georgia, he flew missions into Vietnam during 1964. Additionally, the veteran's service personnel records show that he was a squadron aircraft commander, a squadron aircrew evaluation pilot, and a squadron pilot at Korat Royal Thai Air Force Base (RTAFB), Thailand, from July 1972 to March 1973. During this time, the veteran contends that he flew several missions into Vietnam and Cambodia. He stated that his last mission into Saigon was in 1973. Although service records do not definitively establish the veteran's presence within the Republic of Vietnam, the Board finds that he is competent to describe the nature and locations of his pilot missions. See 38 C.F.R. § 3.159(a)(2) (2003). Furthermore, his service personnel records generally reflect a service history consistent with his account of having been stationed in Japan, Georgia and Thailand, and having flown missions. There is nothing in the record that contradicts the veteran's contentions of having flown certain missions into Vietnam. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 510; 38 C.F.R. § 3.102. Therefore, with the resolution of doubt in his favor, the Board finds that the veteran did have service in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to an herbicide agent, Agent Orange, during such service. The Board next notes that post-service medical records demonstrate that the veteran has a current diagnosis of prostate cancer, a disease presumptive to herbicide-exposed veterans. There is no competent evidence dissociating such prostate cancer from the veteran's active service, to include his presumed exposure to herbicides. Accordingly, the veteran's prostate cancer is presumed to have been incurred as a result of herbicide exposure during service. ORDER Service connection for prostate cancer is granted. ____________________________________________ J. M. Daley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2