Citation Nr: 1114232 Decision Date: 04/12/11 Archive Date: 04/21/11 DOCKET NO. 09-37 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for prostate cancer to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from December 1953 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2011, the appellant testified before the undersigned sitting at the RO. A transcript of the hearing is of record. At this time, the Veteran submitted additional evidence with a waiver of initial RO review of this evidence. Given the waiver as well as the grant of the full benefit sought, the Board's consideration of this evidence in the first instance is warranted. 38 C.F.R. § 20.1304(c). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has been diagnosed with prostate cancer. 2. It is at least as likely as not that the Veteran set foot in Vietnam. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, he is presumed to have been exposed to an herbicide and prostate cancer is therefore presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 5107 West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As the Board is granting the only claim before it, for entitlement to service connection for prostate cancer, no further discussion of VCAA is necessary. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. A Veteran who served in Vietnam between January 9, 1962 and May 7, 1975, is presumed to have been exposed during such service to an herbicide agent. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Moreover, service connection is warranted on a presumptive basis for the diseases listed in 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e), including prostate cancer. See 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a). Private treatment records, including February 2008 Mobile Infirmary Medical Center records, reflect that the Veteran was diagnosed with prostate cancer during the appeal period, and has thus satisfied the "current disability" requirement. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (Fed Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The dispositive issue in this case is therefore whether the Veteran has met this requirement; if so, he is entitled to service connection for prostate cancer on a presumptive basis. The Veteran's DD Form 214 reflects that he had over 26 years of service, including a period of service in Thailand. His record reflects that he was awarded the Vietnam Service medal with two bronze stars, Republic of Vietnam Gallantry Cross with device, and Republic of Vietnam Campaign Medal. These medals indicate that he served in units which supported the Vietnam campaign; however they do not indicate that he actually set foot on the ground in Vietnam. The Veteran claims that he did set foot in Vietnam during the Vietnam era when he was initially deployed to Thailand. At his Travel Board hearing, he testified that he landed in Vietnam and stayed there for between one week and ten days awaiting his assignment. There are two pieces of evidence supporting this contention. The Foreign Service section of the Veteran's AF 7 Form-Military Record includes an entry indicating that he departed for Vietnam on December 21, 1964. However, the word "Vietnam" is crossed out and word "Thailand" is written in its place. Second, a May 2009 letter from an Air Force Colonel who was the Chief of the Congressional Inquiry Division of the Office of Legislative Liaison indicated that the archivists at the Air Force Historical Research Agency failed to find any mention of the Veteran's arrival in Vietnam, but that this would not be uncommon, given the large numbers of individuals assigned to these units and the fact that not every soldier is mentioned in them. Given his proximity to Vietnam, the initial entry in the service records indicating arrival in Vietnam, and the official indication that an individual's arrival in Vietnam would not necessarily be documented in these circumstances, the Veteran's account of having set foot in Vietnam during his initial deployment while awaiting assignment is consistent with the circumstances of his service. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The Board also notes that, based on its observation of the Veteran's Travel Board hearing testimony, this testimony appeared credible. Based on the above, the Board finds that there is at least as much evidence indicating that the Veteran set foot in Vietnam as there is evidence against this contention. The benefit of the doubt doctrine requires that this approximate balance of evidence be resolved in favor of the Veteran on this point. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The finding that the Veteran set foot in Vietnam warrants the presumption that he was exposed to an herbicide. Entitlement to service connection for the diagnosed prostate cancer is therefore warranted on a presumptive basis. ORDER Entitlement to service connection for prostate cancer is granted. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs