Citation Nr: 1125258 Decision Date: 07/05/11 Archive Date: 07/14/11 DOCKET NO. 10-10 885 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for prostate cancer, including as a result of exposure to herbicides. 2. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Marshall O. Potter, Jr., Attorney ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Roanoke, Virginia. The issue of entitlement to a higher initial rating for hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran was stationed at the Royal Thailand Air Force Base in Korat, Thailand from November 1967 to August 1968. 2. In March 1968 the Veteran received temporary orders to Bangkok, Thailand and Pattaya to participate in recreational activities. 3. While en route to and from Pattaya, the Veteran had a stopover for one or more days at Camp Alpha, Vietnam. 4. It is at least as likely as not that the Veteran's prostate cancer is due to his military service by reason of his visit to Vietnam in March 1968. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, prostate cancer was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken on the claim that is decided herein below, the Board finds that no further assistance in developing the facts pertinent to that claim is required at this time. Service connection The Veteran contends that he developed prostate cancer as a result of his military service. He contends that he was exposed to herbicides in Vietnam and at various other times during his service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including prostate cancer, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With regard to claims alleging disability due to exposure to herbicides, a Veteran who served in active military, naval, or air service in Vietnam during the Vietnam era is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence that the Veteran was not exposed to any such agent during that service. Service in Vietnam includes service in the waters offshore Vietnam and service in other locations if the conditions of service required the Veteran to perform duty in, or visit, Vietnam. 38 U.S.C.A. § 1116(f), 38 C.F.R. § 3.307(a)(6)(iii). However, service in Vietnam does not include service that took place exclusively in the territorial waters offshore Vietnam, if the Veteran never set foot on land there. See Haas v. Peake, 544 F.3d 1306, 1308-1309 (Fed. Cir. 2008), cert. den. 129 S.Ct. 1002 (2009). If a Veteran was exposed to a herbicide agent, certain diseases listed at 38 C.F.R.§ 3.309(e) will be considered service connected even though there is no record of such disease in service. These diseases include prostate cancer. 38 C.F.R. § 3.309(e). In this case, the Veteran's service treatment records do not show any diagnosis of, or treatment for, prostate cancer. Private treatment records reflect that the Veteran was first diagnosed with prostate cancer in or about June 2008, more than 35 years after his service. The Veteran contends that his prostate cancer should nonetheless be service connected because he was exposed to herbicides in service, including in Vietnam. The Veteran's service personnel records do not show any service in Vietnam. They do, however, show that the Veteran served at the Royal Thailand Air Force Base in Korat, Thailand from November 1967 to August 1968. The Veteran contends that his duty at Korat, Thailand required him to visit Vietnam on a stopover at Camp Alpha, Vietnam, while on temporary duty orders to participate in recreational activities in Bangkok and Pattaya. The Veteran's service personnel records reflect that the Veteran was given such orders in March 1968. These orders do not on their face mention any stopovers in Vietnam. However, the Veteran submitted a letter from a friend, M.S.R., who asserted that he travelled with the Veteran on his trip to Pattaya. M.S.R. wrote that in order to get to Pattaya the travelers had to first go through Bangkok, Thailand, and then Tan Son Nhut Air Force Base, Vietnam. During that layover in Vietnam, M.S.R. and the Veteran stayed at Camp Alpha. The return trip from Pattaya to Korat also required a stopover in Vietnam. As a result, M.S.R. and the Veteran stayed at Camp Alpha for 2 days. The Veteran also submitted written statements from other members of his unit who asserted that all flights from Korat to destinations where rest and recreation would be performed were routed through Tan Son Nhut Air Force Base and resulted in layovers at Camp Alpha. The Board finds that the Veteran's assertions about his visit to Vietnam, which are corroborated by other members of his unit, are credible and they are competent to report that visitation. As such, they establish a presence in Vietnam that entitles the Veteran to a presumption of exposure to herbicides. Since prostate cancer is one of the diseases that is presumed to have resulted from herbicide exposure in exposed Veterans, service connection for prostate cancer is granted. In doing so, all doubt has been resolved in favor of the Veteran. ORDER Service connection for prostate cancer is granted. REMAND The Veteran contends that his hearing loss is more severe than is encompassed by the currently assigned noncompensable rating. The Veteran was afforded a VA examination of his hearing in April 2009. At that time the Veteran's average decibel losses at the frequencies tested were 55 in the left ear and 58.75 in the right ear. Speech discrimination, which was tested using the Maryland CNC word recognition test as required by 38 C.F.R. § 4.85(a), was 94 percent in each ear. The Veteran was administered a hearing test by for treatment purposes in January 2010. Puretone threshold averages were similar to what was shown in the April 2009 test. However, speech recognition scores were markedly lower, at 76% in the right ear and 72% in the left ear. However, it is unclear whether the Maryland CNC test was used to obtain these speech recognition results. In Savage v. Shinseki, 24 Vet. App. 259, 267 (2011), the Court of Appeals for Veterans Claims (Court) held that VA has a duty to attempt to ascertain whether the Maryland CNC test was used in order to obtain speech recognition test results even in the case of private hearing tests. Here, the audiological testing was performed by VA. Thus, the duty to ascertain whether the Maryland CNC test was used at the January 2010 evaluation is heightened. This should be accomplished upon remand. Additionally, the markedly lower speech recognition scores which were reported in January 2010 indicate that the Veteran's hearing might have gotten worse since the time of his initial VA examination. Therefore, a new examination is necessary in order to determine the current level of the Veteran's hearing impairment. In light of the other needed development needed in this case, more recent treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify all treatment that he received for his hearing loss since January 2010. All identified treatment records should be obtained. VA treatment records should also be obtained. If records are identified but cannot be obtained this fact, as well as the efforts that were made to obtain the records, should be clearly documented in the claims file. The Veteran should also be notified of VA's inability to obtain the records. 2. The RO should contact the audiologist who performed the January 2010 evaluation of the Veteran's hearing, or if he or she is unavailable, another member of the Martinsburg VA audiology staff who is familiar with the testing protocols used in hearing evaluations at that facility, and have him or her identify whether the Maryland CNC test was used to obtain speech discrimination scores at the January 2010 hearing evaluation of the Veteran. 3. The RO should schedule the Veteran for a VA audiological evaluation to determine the current severity of his hearing loss. The results of audiological testing as well as a description of the functional effects of the Veteran's hearing loss disability should be included in the report of examination. 4. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determination remains less than fully favorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs