Citation Nr: 1105217 Decision Date: 02/08/11 Archive Date: 02/18/11 DOCKET NO. 06-09 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for soft tissue sarcoma secondary to herbicide exposure. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD J. Meawad INTRODUCTION The Veteran served on active duty from July 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2005 and November 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the above claim. In April 2008, the Board adjudicated the Veteran's claim on appeal. The Veteran appealed the issue to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In a March 2010 decision, the Court set aside in part the April 2008 Board decision with regard to whether the Veteran served in Vietnam and remanded the matter to the Board for readjudication consistent March 2010 decision. In December 2010, the Veteran submitted pertinent evidence directly to the Board and waived initial consideration of that evidence by the RO. 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. As there is competent, credible evidence that the Veteran had set foot in Vietnam, his exposure to herbicides (e.g., Agent Orange) is, therefore, presumed. 2. Soft tissue sarcoma is presumed to have been incurred in, or as a result of, the Veteran's military service. CONCLUSION OF LAW Soft tissue sarcoma was incurred during active service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION If a veteran served on active duty in Vietnam between January 9, 1962, and May 7, 1975, pursuant to 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e), such a veteran is generally entitled to presumptive service connection if he incurs any of the diseases set forth in the regulation, even though there is no record of such disease during service. Under VA's interpretation, a veteran must simply set foot on the landmass of the Republic of Vietnam to be entitled to the presumption of herbicide exposure. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The chronic diseases for which presumptive service connection is warranted include soft tissue sarcoma. 38 C.F.R. § 3.309(e). VA treatment records include a diagnosis of soft tissue sarcoma. At issue is whether the Veteran had service in Vietnam. The Veteran states that during his service in Thailand, he spent for 4 hours in Vietnam on May 13, 1968 during a flight to Thailand. The RO made several attempts to verify the Veteran's presence in Vietnam. In November 2004, the National Personnel Records Center (NPRC) stated that no dates for Vietnam service were shown. In April 2005, the NPRC again responded to an inquiry that a stopover in Vietnam was not a matter of record. Finally, the RO attempted to verify the Veteran's stop-over in Saigon through his military pay records; however, the Defense Finance Accounting Service stated in July 2005 that they were unable to locate the Veteran's Master Military Pay Account. Although the RO was unsuccessful in confirming the Veteran's assertion that he stopped in Vietnam en route to Thailand, evidence submitted in December 2010 supports the Veteran's claim. Included in the recently submitted evidence is a November 2003 letter from Major R.E.C. of the U.S. Air Force who stated that he was a Master Navigator in service and flew in and out of Vietnam and Thailand from 1964 to 1968 and from 1972 to 1973 and it was his job to brief Military Air Command (MAC) flights departing to Vietnam and Thailand. Major R.E.C. stated that, based on his experience, it was common for military aircraft flying to and from airbases in Thailand to land in Tan Son Nhut Airbase and other Vietnam airbases. In a letter dated April 2010, J.W. stated that he was hired by World Airways as a Captain in 1960 and worked with that company until 1994. He indicated that World Airways was a military contract carrier that supported the Vietnam war effort from 1963 to 1975. J.W. was Captain in charge of all types of aircraft and flew MAC flights into and out of Vietnam from 1963 to 1975. He stated that if a flight was scheduled to proceed through Vietnam to Bangkok, it was necessary to off load the through passengers in Vietnam in order to service the aircraft as it was against military regulation to fuel with passengers on board. In a letter dated December 2010, W.M.W. stated that he met the Veteran when they were assigned on the same charter flight to Thailand and they made several stops on the way, including Vietnam. At each stop, they were ushered into the terminal area while the aircraft was serviced for at least an hour. Finally, in a statement submitted in January 2011, H.T., a former flight attendant with World Airways, stated that she worked for World Airways from 1965 to 1966 on flights into and out of South Vietnam transporting military personnel in support of the war. Many of the flights she serviced were to Vietnam, though she stated that she knew some of the military passengers had final destinations other than Vietnam, which included Thailand. Lay evidence may be competent 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(a)(2). Whether lay evidence is competent and sufficient in a particular case is a fact issue. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). After a determination of competence is made, the Board is obligated to determine whether lay evidence is credible. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 1331). It is the responsibility of the Board to assess the credibility and weight to be given the evidence. Wood v. Derwinski, 1 Vet. App. 190 (1992). The Veteran has consistently stated that he stopped in Vietnam while en route to Thailand. The record includes statements from a Master Navigator, a pilot and a flight attendant who report that during the time period in question, it was customary for flights en route to Thailand to stop in Vietnam and for passengers to deplane. The record also includes a statement from an individual who says he shared such a flight with the Veteran. The statements were made by individuals who had first-hand knowledge of flights to and from Thailand and flights they have personally taken and are therefore competent to make such statements. The Board also finds these statements to be credible as they are internally consistent, plausible, and consistent with each other and with other evidence record. The Board finds that the Veteran's statements as to being onshore in Vietnam are credible and they are corroborated by the above statements. The Veteran set foot within the land borders of Vietnam during the Vietnam conflict and thus, he is presumed to have been exposed to the herbicide Agent Orange. 38 U.S.C.A. § 1116(f). As he has been diagnosed with soft tissue sarcoma, a disease listed in 38 C.F.R. § 3.309(e), the Board finds that a granting of presumptive service connection for soft tissue sarcoma due to herbicide exposure is warranted in this case. Notice and Assistance The Board notes that the duty to notify and assist has been met to the extent necessary to grant the claim for service connection for soft tissue sarcoma. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Thus, there is no prejudice to the Veteran in deciding his claim at this time. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER Service connection for soft tissue sarcoma is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs