Citation Nr: 1138470 Decision Date: 10/14/11 Archive Date: 10/19/11 DOCKET NO. 07-34 712A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for prostate cancer, including as due to exposure to herbicide. 2. 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 Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to February 1970. The Veteran is a recipient of the Bronze Star Medal with "V" Device. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. When this case was before the Board in July 2010, it was decided in part and remanded in part. The issue of service connection for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The evidence of record does not preponderate against the Veteran's assertion that his flight stopped in Vietnam on the way to Thailand. 3. The Veteran's prostate cancer is presumed related to his military service. CONCLUSION OF LAW The Veteran's prostate cancer is presumed related to the Veteran's military service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify The Veterans Claims 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 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Since the Board is granting service connection for the Veteran's prostate cancer, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). II. Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted 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, 1131; 38 C.F.R. § 3.303. Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). If a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran's claim is specifically based on the theory that service connection is warranted based on a special presumption regarding exposure to herbicide agents. Specifically, under the provisions of 38 C.F.R. § 3.309(e), if a Veteran was exposed to an herbicide agent, including Agent Orange, during active military, naval, or air service and has a disease listed in 38 C.F.R. § 3.309(e), such disease 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 that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. These diseases include prostate cancer. Further, according to 38 C.F.R. § 3.307(a)(6)(iii), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era 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. The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the "Vietnam Era"). "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. 38 C.F.R. § 3.307(a)(6)(iii). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975; and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307(a)(6)(iii). VAOPGCPREC 27-97 (July 23, 1997). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) upheld VA's interpretation that, for purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. Haas v. Peake, 525 F.3d 1168 (Fed. Cir 2008). In Haas, the Federal Circuit reversed an earlier United States Court of Appeals for Veterans Claims (Court) ruling, in which the Court rejected VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) that required the service member's presence at some point on the landmass or the inland waters of Vietnam. Id. In reversing, the Federal Circuit held that the Veteran was free to show that he was actually exposed to herbicides while on board his ship as it traveled near the Vietnamese coast. However, he was not entitled to the benefit of the presumptions set forth in 38 U.S.C. § 1116 and the corresponding VA regulations, which are limited to those who "served in the Republic of Vietnam." In sum, 38 C.F.R. § 3.307(a)(6)(iii), requires that for presumptive service connection on the basis of herbicide exposure in Vietnam, the claimant must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. III. Analysis Preliminarily, the Board notes that the presumptive diseases associated with herbicide exposure include prostate cancer. See 38 C.F.R. § 3.309(e). Therefore, if the evidence shows that the Veteran was indeed present on the landmass of Vietnam, the Veteran's prostate cancer would be deemed service-connected on a presumptive basis. In this matter, the record demonstrates that the Veteran served with the U.S. Air Force from April 1966 to February 1970 with one year of foreign service in Thailand. The Veteran does not contend nor does the record show that the Veteran had service in Vietnam. Instead, the Veteran alleges that on his way to Thailand, his plane had a layover in Da Nang, Vietnam for three hours because of "resistance firing". The Veteran specifically alleges that he left the United States for Thailand on December 5, 1967. The AMC has attempted to verify that the Veteran's plane stopped in Vietnam. The AMC contacted NPRC, obtained the Veteran's personnel records and associated them with the Veteran's claims file. The AMC also contacted the U.S. Army and Joint Services Records Research Center (JSRRC) and ask them to provide any available information that might corroborate the Veteran's alleged time spent in the Republic of Vietnam. The AMC also contacted the Air Force Historical Research Agency (Air Force) for verification of the Veteran's claimed three hour layover in Da Nang, Vietnam. The Air Force responded that some flights did stop in Vietnam on their way to Thailand. Despite this, the Air Force indicated that without the exact unit he was flying with or the exact date of the flight, it could not verify the account made by the Veteran. In summary, no official documentation of record substantiates the Veteran's account of a layover in Vietnam. In addition, the Veteran's service treatment records and service personnel records do not expressly demonstrate that the Veteran established a presence within Vietnam for purposes of assessing 38 C.F.R. § 3.307(a)(6)(iii). The Board has considered whether further development would provide evidence of his layover in Vietnam. The Board has found that further development would be futile. Regardless of the lack of documentation, the Veteran has consistently stated that he stopped in Vietnam on his way to Thailand. See Veteran's statements received by the Board in August 2006, November 2007, November 2010. The Board finds that the Veteran's assertions are credible. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (BVA has a duty to assess the credibility and weight of the evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). First, the Board finds the Veteran has been consistent in his statements from 2006 to 2010 regarding the circumstances of his layover in Vietnam. Id. Second, the Veteran's contentions are not implausible. Although it could not verify that the Veteran was on a plane that stopped in Vietnam, a representative of the service department declared that some planes did indeed stop in Vietnam on their way to Thailand. Based on the entire record, the Board finds that the evidence does not preponderate against the Veteran's claim that he established presence within Vietnam in December 1967. The record is consistent with the Veteran's assertions regarding his layover in Vietnam. See Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility is determined by the fact finder). It is important to emphasize that the existence of a fact may not be rejected solely because the event or occurrence is not documented by a writing. Based on the record, the presumption to service connection under 38 C.F.R. § 3.309(e) applies. Prostate cancer is deemed associated with herbicide agent exposure under VA law. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Accordingly, as it is presumed that the Veteran was exposed to herbicide agents during active military service, and as the medical evidence shows a current diagnosis of prostate cancer, service connection for prostate cancer is warranted. ORDER Entitlement to service connection for prostate cancer is granted. REMAND Under the Veterans Claims Assistance Act of 2000 (VCAA), VA must provide an examination when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. As of this Board decision, service connection has been granted for prostate cancer. Since the Veteran is claiming service connection for erectile dysfunction as secondary to prostate cancer, the Board finds that this issue must be remanded for further development to include a VA examination. In addition, the Veteran did not file a substantive appeal in this case but instead his letter received in November 2007 was construed as a substantive appeal. The Veteran has not been asked if he would like a hearing his case. Upon remand, the AMC should ask the Veteran if he desires a hearing for the issues of service connection for erectile dysfunction. The actions identified herein are consistent with the duties imposed by VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claims remaining on appeal. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate steps to send the Veteran a letter advising him of the information and evidence necessary to substantiate the remanded claims, as required by Dingess/Hartmann v. Nicholson, 19 Vet. App. 473 (2006), and Hart v. Mansfield, 21 Vet. App.505 (2007). 2. The Veteran should be afforded a VA examination to determine the nature and likely etiology of the claimed erectile dysfunction. All necessary special studies or tests should be accomplished. It is imperative that the examiner review the evidence in the claims file, including a complete copy of this REMAND, and acknowledges such review in the examination report. Following examination of the Veteran, the examiner should specifically offer an opinion as to the following: (a) Is it is at least as likely as not (50 percent probability or more) that the Veteran has a current erectile dysfunction disability that was caused by his service-connected prostate cancer? (b) If not, is it is at least as likely as not (50 percent probability or more) that the Veteran's erectile dysfunction was aggravated by the service-connected prostate cancer? The examiner should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. A complete rationale should be given for all opinions and should be based on examination findings, historical records, and medical principles. 3. The Veteran should be sent a letter asking whether he desires a hearing as to the issue of service connection for erectile dysfunction. 4. After conducting all necessary development to assist the Veteran, his claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. 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). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs