Citation Nr: 1114191 Decision Date: 04/11/11 Archive Date: 04/21/11 DOCKET NO. 07-03 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for prostate cancer, including as secondary to Agent Orange exposure. 2. Entitlement to service connection for urinary dysfunction, including as secondary to prostate cancer. 3. Entitlement to service connection for erectile dysfunction, including as secondary to prostate cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The Veteran had active service from November 1966 to September 1978, including service at Nakhon Phanom (NKP) Royal Thai Air Force Base (RTAFB), in Thailand, over the period of November 1969 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 2009, the Board remanded the case to the RO for further development. The issues of entitlement to service connection for urinary and erectile dysfunction, including as secondary to prostate cancer, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The currently demonstrated prostate cancer is shown as likely as not to be due to injury or disease incurred during the Veteran's period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his prostate cancer is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154(a), 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran is seeking service connection for prostate cancer on the basis that he set foot in Vietnam while in service and is thus presumed exposed to herbicides. Alternatively, he reports being exposed to herbicides during service in Thailand. As an initial matter, the Board points out that the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In the present case, in view of the favorable disposition, the Board finds that all notification and development action necessary to render a fair decision on the matter has been accomplished. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board's duty is to assess the credibility and weight of the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Board finds that by extending the Veteran the benefit of the doubt, service connection is warranted. The evidence shows that the Veteran was first diagnosed with prostate cancer in January 2002, and he contends that the prostate cancer was caused by exposure to herbicides during service. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases will be established even though there is no record of such disease during service, provided that the disease is manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Prostate cancer is a disease for which presumptive service connection is warranted on the basis of herbicide exposure. See 38 C.F.R. § 3.309(e). The central issue in this case is whether the Veteran was exposed to Agent Orange during his service. A Veteran who, during active service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicides during that service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. Here, he contends that he was on several missions that landed in Da Nang, Vietnam. Further, he maintains he was exposed to herbicides during service at NKP RTAFB, in Thailand. The record confirms that he had service at NKP from November 1969 to November 1970. The historical evidence of record is far from clear in establishing that the Veteran was, in fact, actually exposed to Agent Orange during his service. Nonetheless, the Board finds that the evidence is at least in a state of relative equipoise in showing that it is as likely as not that he was exposed to herbicides in service. The Veteran reports setting foot in Vietnam while in service and the Board finds that his report, when considered with the other evidence of record, is both competent and credible. Thus, without reaching whether he was also exposed to herbicides while serving in Thailand, the Board finds that the evidence is at least in relative equipoise in showing that he served in Vietnam and was as likely as not exposed to an herbicide agent while in service. As such, service connection is warranted. 38 C.F.R. §§ 3.307, 3.309. ORDER Service connection for prostate cancer is granted. REMAND As to the remaining claims on appeal, having determined that service connection for the Veteran's prostate cancer is warranted, the Board finds that the Veteran must afforded an appropriate VA examination to determine whether his urinary and erectile dysfunction were caused or aggravated by his prostate cancer and if not, whether these disorders are directly related to service, based on exposure to Agent Orange, or otherwise. Accordingly, the case is REMANDED for the following action: 1. After associating any pertinent, outstanding evidence with the claims folder, schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed urinary and erectile dysfunction. The claims folder must be made available to and reviewed by the examiner. All indicated studies should be performed and all manifestations of current disability should be described in detail. The examiner should address the following: (a) Does the Veteran have current, chronic urinary and erectile dysfunction? If so, is it at least as likely as not that any such disability or disabilities began in service or was the result of any incident in service, to include exposure to Agent Orange? (b) If any disabilities manifested by urinary and/or erectile dysfunction did not begin in service and were not caused by service, the examiner should provide an opinion as to whether it is at least as likely as not that any such disability is being caused or aggravated by the Veteran's service-connected prostate cancer. Each opinion should contain comprehensive rationale based on sound medical principles and facts. 2. Then readjudicate the appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs