Citation Nr: 0415499	
Decision Date: 06/17/04    Archive Date: 06/23/04

DOCKET NO.  02-18 161	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for prostate cancer.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. W. Fabian, Counsel


INTRODUCTION

The veteran served on active duty from July 1954 to June 
1977.

This matter comes to the Board of Veterans' Appeals (Board) 
from an October 2001 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO), in which the RO 
denied the benefit sought on appeal.  The veteran perfected 
an appeal of that decision.


FINDINGS OF FACT

1.  The RO has notified the veteran of the evidence needed to 
substantiate his claim, obtained all relevant evidence 
identified by the veteran, and provided him VA examinations 
in order to assist him in substantiating his claim for VA 
compensation benefits.

2.  The veteran served at an Air Force base in Thailand from 
March 1967 to March 1968, and the conditions of his service 
involved duty and/or visitation in the Republic of Vietnam.

3.  The medical evidence establishes that the veteran has 
prostate cancer, or the residuals thereof.


CONCLUSION OF LAW

Prostate cancer is presumed to have been incurred in service.  
38 U.S.C.A. §§ 1110, 1116, 1131, 1137, 5107 (West 2002); 
38 C.F.R. §§ 3.303, 3.307, 3.309 (2003).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends that his prostate cancer, which was 
diagnosed in 1999, was caused by his exposure to Agent Orange 
in Vietnam.



Development of the Claim

The Board has considered the provisions of the Veterans 
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 
2096 (2000) (VCAA) (codified at 38 U.S.C.A. §§ 5103, 5103A 
(West 2002)).  The VCAA includes an enhanced duty on the part 
of VA to notify a claimant as to the information and evidence 
necessary to substantiate a claim for VA benefits.  The VCAA 
also redefines the obligations of VA with respect to its 
statutory duty to assist claimants in the development of 
their claims.  In August 2001 VA issued regulations to 
implement the provisions of the VCAA, which are now codified 
at 38 C.F.R. §3.159 (2003).  

Duty to Notify

On receipt of a claim for benefits VA will notify the veteran 
of the evidence that is necessary to substantiate the claim.  
VA will also inform the veteran which information and 
evidence, if any, that he is to provide and which information 
and evidence, if any, VA will attempt to obtain on his 
behalf.  VA will also request that the veteran provide any 
evidence in his possession that pertains to the claim.  See 
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 
38 C.F.R. § 3.159(b) (2003).

The RO notified the veteran of the information and evidence 
needed to substantiate his claim in March 2002 by informing 
him of the provisions of the VCAA and the specific evidence 
required to substantiate his claim for service connection.  
The RO also informed him of the information and evidence that 
he was required to submit, and the evidence that the RO would 
obtain on his behalf.  The RO instructed him to identify any 
evidence that was relevant to his claim, and to provide 
signed authorizations for each medical care provider so that 
VA could obtain that evidence on his behalf.  The RO also 
instructed him to submit any evidence in his possession that 
was relevant to his claim.  The RO informed him that although 
VA would make reasonable efforts to obtain the evidence he 
identified, it was ultimately his responsibility to provide 
the evidence in support of his claim.

The Board is cognizant of the United States Court of Appeals 
for Veterans' Claims' (hereinafter, "the Court") holding in 
Pelegrini v. Principi, 17 Vet. App. 412 (2004), that VCAA 
notice must be provided to a claimant before the " initial 
unfavorable [agency of original jurisdiction (AOJ)] decision 
on a service-connection claim."  The Court also held that 
the duty to notify provisions required VA to request or tell 
the claimant to provide any evidence in the claimant's 
possession that pertains to the claim.  To the extent that 
the Court's decision in this regard is not mere dicta, the 
RO's compliance with the VCAA notice provisions subsequent to 
the initial decision is not prejudicial.  See Pelegrini, 17 
Vet. App. at 430 (Ivers, J. concurring in part, dissenting in 
part) ("[P]arts III.A.1, 2.a and b. of the opinion contain 
nothing necessary to the disposition of this case.  They are, 
therefore, at best dictum.")

Here, the "initial unfavorable" rating decision, from which 
this appeal arises, occurred in October 2001.  Although the 
March 2002 notice was sent following the October 2001 
decision, the veteran has had more than two years following 
that notice to submit additional evidence or identify 
evidence for the RO to obtain.  Following the March 2002 
notice the RO obtained additional evidence, and based on that 
additional evidence the RO re-adjudicated the substantive 
merits of the veteran's claim in the October 2002 statement 
of the case.  In re-adjudicating the claim for service 
connection the RO considered all the evidence of record and 
applied the same benefit-of-the doubt standard of proof as 
when initially adjudicating the claim.  In resolving his 
appeal the Board will also consider all the evidence now of 
record, and apply the same standard of proof.  The veteran 
was provided the opportunity to request a hearing before the 
RO and the Board, but did not do so.  For these reasons and 
on consideration of the Board's disposition of his appeal, 
the Board finds that the veteran has not been prejudiced by 
him having been notified of the evidence needed to 
substantiate his claim following the RO's October 2001 
unfavorable decision.  See Curry v. Brown, 7 Vet. App. 59, 68 
(1994) (prejudice is not shown if the claimant has been given 
adequate notice of the need to submit evidence or argument on 
the question being considered and an opportunity to submit 
such evidence and argument and to address that question at a 
hearing).  

In the October 2002 statement of the case the RO informed the 
veteran of the regulatory requirements for establishing 
entitlement to service connection, and the rationale for 
determining that the evidence he had then submitted did not 
show that those requirements were met.  The RO notified the 
veteran that his case was being sent to the Board, and 
informed him that any additional evidence that he had should 
be submitted to the Board.  The Board finds, therefore, that 
VA has fulfilled its obligation to inform him of the evidence 
needed to substantiate his claim.

Duty to Assist

In general, the statute and regulation provide that VA will 
also make reasonable efforts to help the veteran obtain 
evidence necessary to substantiate the claim, unless no 
reasonable possibility exists that such assistance would aid 
in substantiating the claim.  VA's duty includes making 
efforts to obtain his service medical records, if relevant to 
the claim; other relevant records pertaining to service; VA 
medical records; and any other relevant records held by any 
other source.  The veteran is also required to provide the 
information necessary to obtain this evidence, including 
authorizations for the release of medical records.  38 C.F.R. 
§ 3.159(c) (2003).  

The RO has obtained the veteran's service medical and 
personnel records, and he submitted private treatment records 
in support of his claim.  The RO also provided him VA medical 
examinations in July 2001.  The veteran has not alluded to 
the existence of any other evidence that is relevant to his 
claim.  The Board concludes that all relevant data has been 
obtained for determining the merits of his claim and that, 
given the disposition of his appeal, no further assistance is 
required to assist him in substantiating his claim.  Wensch 
v. Principi, 15 Vet. App. 362, 368 (2001).

Relevant Laws and Regulations

Service connection may be established for a disability 
resulting from disease or injury incurred in or aggravated by 
active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002).  
Service connection may be granted for any disease diagnosed 
after discharge, when all of the evidence establishes that 
the disease was incurred in service.  38 C.F.R. § 3.303 
(2003).

In order to establish service connection for the claimed 
disorder, there must be 
(1) medical evidence of a current disability; (2) medical, or 
in certain circumstances, lay evidence of in-service 
incurrence or aggravation of a disease or injury; and (3) 
medical evidence of a nexus between the claimed in-service 
disease or injury and the current disability.  Hickson v. 
West, 12 Vet. App. 247, 253 (1999).  

A veteran who had active service in the Republic of Vietnam 
from January 9, 1962, to May 7, 1975, will be presumed to 
have been exposed to an herbicide agent during that service.  
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.  When such a veteran develops a disorder 
listed in 38 C.F.R. § 3.309(e), which disorders have been 
shown to be caused by exposure to Agent Orange, to a degree 
of 10 percent or more within the specified period, the 
disorder shall be presumed to have been incurred during 
service.  38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. 
§§ 3.307(a)(6), 3.309(e) (2003).  

The determination as to whether the requirements for service 
connection are met is based on an analysis of all the 
evidence of record and the evaluation of its credibility and 
probative value.  38 U.S.C.A. § 7104(a) (West 2002); Baldwin 
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2003).  
When there is an approximate balance of positive and negative 
evidence regarding a material issue, the benefit of the doubt 
in resolving each such issue shall be given to the claimant.  
38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 
F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102 (2003).  
If the Board determines that the preponderance of the 
evidence is against the claim, it has necessarily found that 
the evidence is not in approximate balance, and the benefit 
of the doubt rule is not applicable.  Ortiz, 274 F.3d at 
1365.



Analysis

The medical evidence shows that the veteran has prostate 
cancer, for which he has undergone a number of surgical 
procedures since September 1999.  Prostate cancer is one of 
the diseases to which the presumption of service connection 
applies for veterans exposed to Agent Orange.  See 38 C.F.R. 
§ 3.309(e) (2003).  He continues to suffer from the residuals 
of the prostate cancer.  His claim is, therefore, supported 
by a current medical diagnosis of disability.  For the 
reasons that will be explained below, the Board also finds 
that his claim is supported by credible evidence of an in-
service injury (exposure to Agent Orange).  Hickson, 12 Vet. 
App. at 253.  In that case the regulation providing a 
presumption of service connection for prostate cancer for 
veterans who have been exposed to Agent Orange establishes 
the nexus between that exposure and the development of 
prostate cancer.  See Pearlman v. West, 11 Vet. App. 443 
(1998).

The veteran's service personnel records show that he retired 
from the Air Force as a Command Sergeant Major, with almost 
23 years of active service.  He was stationed at the Takhli 
Royal Thai Air Force Base from March 1967 to March 1968 as an 
Air Operations Supervisor.  The performance reports covering 
that period of service show that he served in the Combat 
Operations Division, which was conducting missions against 
North Vietnam.  His duties included the breakdown and 
dissemination of combat mission orders; preparation of Wing 
Commander and combat mission pilot briefings; maintenance of 
daily work schedules and target data charts; maintenance of 
mission planning and briefing rooms; and assisting in combat 
mission briefings.  His commanding officer found his level of 
performance to be outstanding; that he was one of the most 
highly respected non-commissioned officers on the base; and 
that he was deeply involved in the analysis, interpretation, 
and dissemination of the orders controlling the combat 
missions of the Tactical Fighter Wing.

The service personnel records also show that he received the 
Vietnam Service Medal and the Republic of Vietnam Campaign 
Medal.  He participated in the Vietnam Air Offensive Campaign 
from March 1967 to March 1978.  He received a Bronze Star 
Medal for meritorious service as the non-commissioned officer 
in charge, Combat Operations Branch, Thailand, while engaged 
in operations against the North Vietnamese from March 1967 to 
March 1968.

The veteran has stated that while serving at the Takhli Royal 
Thai Air Force Base, he went on a temporary duty assignment 
(TDY) to Saigon for three days.  He also submitted a 
statement from an individual with whom he served verifying 
his assertion of having been on a three-day trip to Saigon to 
discuss military targets.  The Board finds the veteran's 
statement, and that of the individual with whom he served, to 
be credible.  The statements are not refuted by any evidence 
of record, and the Board finds that, given the veteran's 
responsibilities and the role of the Combat Fighter Wing in 
the Vietnam War, his assertion of having been in Saigon is 
highly plausible.  For that reason the Board finds that the 
veteran had service in the Republic of Vietnam during the 
applicable time period, in that he was stationed in Thailand 
and the conditions of his service involved duty or visitation 
in the Republic of Vietnam.  

Having found that the veteran had service in the Republic of 
Vietnam during the applicable time frame, and that he has 
prostate cancer, the presumption of service connection for 
veterans who served in Vietnam is applicable.  The Board 
finds, therefore, that the evidence supports the grant of 
service connection for prostate cancer.


ORDER

Service connection for prostate cancer is granted.




	                        
____________________________________________
	Kathy A. Banfield
	Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs

YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (BVA or Board) is 
the final decision for all issues addressed in the "Order" section of the 
decision.  The Board may also choose to remand an issue or issues to the 
local VA office for additional development.   If the Board did this in your 
case, then a "Remand" section follows the "Order."  However, you cannot 
appeal an issue remanded to the local VA office because a remand is not a 
final decision. The advice below on how to appeal a claim applies only to 
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do 
anything.  We will return your file to your local VA office to implement 
the BVA's decision.  However, if you are not satisfied with the Board's 
decision on any or all of the issues allowed, denied, or dismissed, you 
have the following options, which are listed in no particular order of 
importance: 
?	Appeal to the United States Court of Appeals for Veterans Claims 
(Court)
?	File with the Board a motion for reconsideration of this decision
?	File with the Board a motion to vacate this decision 
?	File with the Board a motion for revision of this decision based on 
clear and unmistakable error. 
Although it would not affect this BVA decision, you may choose to also: 
?	Reopen your claim at the local VA office by submitting new and 
material evidence. 
There is no time limit for filing a motion for reconsideration, a motion to 
vacate, or a motion for revision based on clear and unmistakable error with 
the Board, or a claim to reopen at the local VA office.  None of these 
things is mutually exclusive - you can do all five things at the same time 
if you wish.  However, if you file a Notice of Appeal with the Court and a 
motion with the Board at the same time, this may delay your case because of 
jurisdictional conflicts. If you file a Notice of Appeal with the Court 
before you file a motion with the BVA, the BVA will not be able to consider 
your motion without the Court's permission. 

How long do I have to start my appeal to the Court?  You have 120 days from 
the date this decision was mailed to you (as shown on the first page of 
this decision) to file a Notice of Appeal with the United States Court of 
Appeals for Veterans Claims.  If you also want to file a motion for 
reconsideration or a motion to vacate, you will still have time to appeal 
to the Court.  As long as you file your motion(s) with the Board within 120 
days of the date this decision was mailed to you, you will then have 
another 120 days from the date the BVA decides the motion for 
reconsideration or the motion to vacate to appeal to the Court.  You should 
know that even if you have a representative, as discussed below, it is your 
responsibility to make sure that your appeal to Court is filed on time.

How do I appeal to the United States Court of Appeals for Veterans Claims?  
Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for 
filing a Notice of Appeal, the filing fee (or a motion to waive the filing 
fee if payment would cause financial hardship), and other matters covered 
by the Court's rules directly from the Court. You can also get this 
information from the Court's web site on the Internet at 
www.vetapp.uscourts.gov, and you can download forms directly from that 
website.  The Court's facsimile number is (202) 501-5848. 

To ensure full protection of your right of appeal to the Court, you must 
file your Notice of Appeal with the Court, not with the Board, or any other 
VA office. 

How do I file a motion for reconsideration? You can file a motion asking 
the BVA to reconsider any part of this decision by writing a letter to the 
BVA stating why you believe that the BVA committed an obvious error of fact 
or law in this decision, or stating that new and material military service 
records have been discovered that apply to your appeal. If the BVA has 
decided more than one issue, be sure to tell us which issue(s) you want 
reconsidered. Send your letter to: 
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

VA 
FORM
JUN 
2003 
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CONTINUED



Remember, the Board places no time limit on filing a motion for 
reconsideration, and you can do this at any time. However, if you also plan 
to appeal this decision to the Court, you must file your motion within 120 
days from the date of this decision. 

How do I file a motion to vacate? You can file a motion asking the BVA to 
vacate any part of this decision by writing a letter to the BVA stating why 
you believe you were denied due process of law during your appeal. For 
example, you were denied your right to representation through action or 
inaction by VA personnel, you were not provided a Statement of the Case or 
Supplemental Statement of the Case, or you did not get a personal hearing 
that you requested. You can also file a motion to vacate any part of this 
decision on the basis that the Board allowed benefits based on false or 
fraudulent evidence.  Send this motion to the address above for the 
Director, Management and Administration, at the Board.  Remember, the Board 
places no time limit on filing a motion to vacate, and you can do this at 
any time. However, if you also plan to appeal this decision to the Court, 
you must file your motion within 120 days from the date of this decision. 

How do I file a motion to revise the Board's decision on the basis of clear 
and unmistakable error? You can file a motion asking that the Board revise 
this decision if you believe that the decision is based on "clear and 
unmistakable error" (CUE).  Send this motion to the address above for the 
Director, Management and Administration, at the Board. You should be 
careful when preparing such a motion because it must meet specific 
requirements, and the Board will not review a final decision on this basis 
more than once. You should carefully review the Board's Rules of Practice 
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified 
representative before filing such a motion. See discussion on 
representation below. Remember, the Board places no time limit on filing a 
CUE review motion, and you can do this at any time. 

How do I reopen my claim? You can ask your local VA office to reopen your 
claim by simply sending them a statement indicating that you want to reopen 
your claim.  However, to be successful in reopening your claim, you must 
submit new and material evidence to that office. See 38 C.F.R. 3.156(a). 

Can someone represent me in my appeal?  Yes. You can always represent 
yourself in any claim before VA, including the BVA, but you can also 
appoint someone to represent you.  An accredited representative of a 
recognized service organization may represent you free of charge.  VA 
approves these organizations to help veterans, service members, and 
dependents prepare their claims and present them to VA. An accredited 
representative works for the service organization and knows how to prepare 
and present claims. You can find a listing of these organizations on the 
Internet at: www.va.gov/vso.  You can also choose to be represented by a 
private attorney or by an "agent." (An agent is a person who is not a 
lawyer, but is specially accredited by VA.) 

If you want someone to represent you before the Court, rather than before 
VA, then you can get information on how to do so by writing directly to the 
Court.  Upon request, the Court will provide you with a state-by-state 
listing of persons admitted to practice before the Court who have indicated 
their availability to represent appellants.  This information is also 
provided on the Court's website at www.vetapp.uscourts.gov. 

Do I have to pay an attorney or agent to represent me?  Except for a claim 
involving a home or small business VA loan under Chapter 37 of title 38, 
United States Code, attorneys or agents cannot charge you a fee or accept 
payment for services they provide before the date BVA makes a final 
decision on your appeal. If you hire an attorney or accredited agent within 
1 year of a final BVA decision, then the attorney or agent is allowed to 
charge you a fee for representing you before VA in most situations.  An 
attorney can also charge you for representing you before the Court.  VA 
cannot pay fees of attorneys or agents. 

Fee for VA home and small business loan cases:  An attorney or agent may 
charge you a reasonable fee for services involving a VA home loan or small 
business loan.  For more information, read section 5904, title 38, United 
States Code. 

In all cases, a copy of any fee agreement between you and an attorney or 
accredited agent must be sent to: 

Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420

The Board may decide, on its own, to review a fee agreement for 
reasonableness, or you or your attorney or agent can file a motion asking 
the Board to do so. Send such a motion to the address above for the Office 
of the Senior Deputy Vice Chairman at the Board. 


VA 
FORM
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2003 
(RS) 
 
4597
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