Citation Nr: 0523917 Decision Date: 08/31/05 Archive Date: 09/09/05 DOCKET NO. 03-33 480 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for prostate cancer, due to exposure to herbicides. 2. Entitlement to service connection for Type II diabetes mellitus, due to exposure to herbicides. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The veteran had active service from October 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) from a February 2002 RO rating decision which denied service connection for prostate cancer and diabetes as a result of exposure to herbicides. This case has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2); 38 C.F.R. § 20.900(c). FINDINGS OF FACT 1. The veteran served in Thailand from November 1967 to November 1968, during the Vietnam Era, and while there engaged, performed duties involving flights into the Republic of Vietnam. 2. Prostate cancer was incurred in active service, due to presumed exposure to herbicides in Vietnam. 3. Diabetes mellitus was incurred in active service, due to presumed exposure to herbicides in Vietnam. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for prostate cancer are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). 2. The criteria for the establishment of service connection for diabetes mellitus are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he incurred prostate cancer and diabetes mellitus as a result of his active military duty with the U.S. Air Force in Thailand during the Vietnam War. Although he concedes that he was not assigned to a military unit stationed in Vietnam, he contends that he participated in flight and rescue operations into Vietnam from a base in northwest Thailand, and that he is thus entitled to the presumption of exposure to herbicides accorded to all veterans who served in Vietnam. Having carefully considered the veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). The law provides that service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. 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. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, both prostate cancer and Type 2 diabetes, among others, 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. 38 C.F.R. § 3.309(e). The diseases listed at § 3.309(e) must have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The evidence of record reflects that the veteran was stationed at Nakon Phanom Air Force Base in Thailand from November 1967 to November 1968. He was assigned to the 21st Special Operations Squadron - a common designator known in military services to denote organizations with a wide variety of missions involving general combat operations. A web site extract provided by the veteran indicates that the unit was involved in search and rescue operations of downed military aircraft, as well as insertions of various combat forces for varied missions into Vietnam. The veteran's service personnel records indicate that his military occupational specialty (MOS) during this period was helicopter mechanic. There is also evidence that in May 1968 the veteran was medically cleared for flying duty and that his "rating, designation, or flying duty" at that time was flight engineer. His DA Form 20 shows that in July 1967 his Air Force specialties included helicopter mechanic and flight engineer. Significantly, the veteran's MOS did not change during his active military duty, and there are various references in his service personnel evaluation forms indicating that he flew missions at various times, prior to his assignment to Thailand. Thus, the foregoing evidence in its whole suggests that the veteran was likely to have continued to participate in various flight operations, subsequent to his Southeast Asia assignment. In support of his claim, the veteran has also submitted statements from a relative, L.H., and from a fellow servicemember, T.C.S. L.H. was also a helicopter mechanic and flight engineer stationed at Nakon Phanom AFB in Thailand and assigned to the 21st Special Operations Squadron. He reports that he witnessed the veteran volunteer for and fly missions into Vietnam. The account of T.C.S. is that he served with the veteran from 1967 to 1968 with the 21st Helicopter Squadron, was also a helicopter mechanic, and flew on missions with the veteran into Vietnam. As noted, the veteran submitted internet excerpts detailing the operations of the 21st Special Operations Squadron (formerly the 21st Helicopter Squadron), which confirmed that the unit provided infiltration, exfiltration, resupply, or fire support and was involved in combat operations in Southwest Asia from November 1967 to August 1973. There can be no doubt that further inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of approximate balance. In this matter, the Board is of the opinion that this point has been attained: official military records from the entirety of service suggest that the veteran was qualified for, and participated in flight operations prior to his assignment to Thailand; there is no evidence to suggest that this practice was altered when the veteran was assigned to a unit directly participating in combat operations; and service colleagues have provided accounts similar to that of the veteran. Thus, a state of relative equipoise has been reached in this case, and the benefit of the doubt rule will therefore be applied. Alemany, 9 Vet. App. at 519; Brown v. Brown, 5 Vet. App. 413, 421 (1993). 38 U.S.C.A. § 5107(b); Because the competent medical evidence of record confirms that the veteran has prostate cancer and Type II diabetes mellitus, and it has been determined that he had duty in Vietnam and was presumed to have been exposed to herbicides therein, there is a presumption of service connection for prostate cancer and diabetes mellitus. Thus, entitlement to service connection for prostate cancer and Type II diabetes mellitus is granted. ORDER Service connection for prostate cancer is granted. Service connection for Type II diabetes mellitus is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs