Citation Nr: 0434051 Decision Date: 12/28/04 Archive Date: 01/05/05 DOCKET NO. 03-05 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for prostate cancer. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and spouse ATTORNEY FOR THE BOARD C. Crowley, Counsel INTRODUCTION The veteran served on active duty from November 1961 to May 1970, and from March 1972 to July 1983. This case comes to the Board of Veterans' Appeals (Board) from a November 2002 rating decision of the RO. The veteran withdrew his request for a local hearing in a February 2004 communication. He also withdrew his appeal on the issues of service connection for an irregular heartbeat, rhinitis, and hearing loss at that time. He was afforded a hearing before the undersigned Veterans Law Judge in June 2004. FINDINGS OF FACT 1. The veteran's conditions of service involved duty or visitation in the Republic of Vietnam during the Vietnam War. 2. The veteran carries a current diagnosis of prostate cancer with residuals. CONCLUSION OF LAW Prostate cancer and its residuals are presumed due to exposure to Agent Orange in the Republic of Vietnam, during the Vietnam war. 38 U.S.C.A. §§ 1101, 1110, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 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). After VA receives an application that is at least substantially complete, VA must then provide notice of the information and evidence not of record that is necessary to substantiate the "claim," including which information and evidence that VA will seek to provide, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Additionally, if an application for a benefit is incomplete, VA shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application. 38 U.S.C.A. § 5102(b); see also 38 C.F.R. § 3.159(b)(2) (receipt of incomplete application triggers notice of information necessary to complete information). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. However, under the facts and circumstances of the instant case, the veteran's claim is granted in full, and he is in no way prejudiced by the Board proceeding to this favorable disposition without a review of the due process requirements of the VCAA. See generally, Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection may be granted for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, there is no evidence of direct service connection for prostate cancer. The veteran did not develop prostate cancer until many years after his separation from service, and there is no competent medical nexus of record establishing a connection between current prostate cancer disability and service. However, the relevant question the Board must address is whether the veteran's service qualifies him for application of the presumptions available for "herbicide exposed" Vietnam veterans, under 38 U.S.C.A. § 1116. Specifically, the issue at hand is whether the veteran had "in country" Republic of Vietnam service, so that these presumptions may be applied in the veteran's case. See 38 C.F.R. § 3.307. A veteran is presumed to have been exposed to Agent Orange if he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307 (2004). 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 Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii). The diseases listed at 38 C.F.R. § 3.309(e) applicable to the veteran's case include prostate cancer. 38 C.F.R. § 3.309(e). It is required only that prostate cancer shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The medical evidence reveals that the veteran carries a current diagnosis of prostate cancer with residuals, as reflected on the October 2002 VA compensation and examination report. Thus, his disorder has clearly become manifest to a degree of at least 10 percent at some point after service. See 38 C.F.R. § 4.115b, Diagnostic Coe 7528 "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) (2004). In this case, the veteran is in receipt of certain awards and decorations which show that his foreign or oversees service occurred during the timeframe necessary, and involved participation in battles or campaigns in support of the Vietnam war, including the Vietnam Service Medal with one Bronze Service Star, the Vietnam Campaign Medal and the Republic of Vietnam Gallantry Cross with device. The veteran was an aerospace ground equipment mechanic in the U.S. Air Force, and was, at one time, officially stationed at Korat Airbase in Thailand. Although his master personnel record is on file, no TDY orders, reflecting temporary duty in Vietnam, or anywhere else, are included. His personnel records do show that he was in Thailand between November 1967 and November 1968. He avers that while he did, in fact, spend the majority of this time in Thailand, he also visited "in country" in Vietnam to repair aircraft, on least two occasions during the applicable time period. He has submitted copies of pay stubs, which he contends show that he received "combat pay" in August 1972, during his second period of service. He also testified that he was specifically told no additional government copies of records were available, as his records from that time frame were presumably destroyed by the 1973 fire at the National Personnel Records Center (NPRC). He has provided testimony, before the undersigned Veterans Law Judge. His wife has provided her testimony as to her recollections of events, and a written lay statement. The veteran has also submitted a pay stub, which he testified establishes that he received combat pay for at least one pay period during his service during the Vietnam war, and that combat pay was not in order for Air Force service members who did not "visit" or set foot in Vietnam during the war. The veteran also testified that he did not serve in the demilitarized zone (DMZ), and his personnel records support his testimony. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim, or is in relative equipoise, in which case the claim is granted, or whether instead a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The herbicide regulations provide that the factual basis for a grant of service connection, due to herbicide exposure, may be established by medical evidence, competent lay evidence, or both. 38 C.F.R. § 3.307 (b). Under the facts and circumstances of the specific case, the preponderance of the evidence is not against the veteran's claim. The reasons for the Board's determination are multi- factorial. First, his June 2004 hearing testimony is considered credible and probative of the precise issue at hand. Additionally, the veteran's spouse's testimony is also considered credible. Next, the veteran's particular occupational specialty, aerospace ground equipment mechanic, at the time in question, is entirely consistent with the proposition that he visited Vietnam at least once during the applicable timeframe. Nothing in the record contradicts this conclusion. Finally, the veteran's receipt of the Vietnam Service Medal, Vietnam Campaign Medal and the Vietnam Gallantry Cross, while not dispositive that he served in Vietnam, do lend support to the contention that his duty resulted in the veteran visiting Vietnam. Moreover, although the SMRs do not show treatment during the time the veteran recalls being in Vietnam, they also do not show that he was treated elsewhere. Therefore, they do not sufficiently preponderate against the claim. The Board notes that the RO interpreted the statements on the VA examination as the veteran reporting that he served in Vietnam from 1962 to 1967; however, the Board finds the veteran's testimony under oath at his hearing, and his statements on his notice of disagreement and substantive appeal, sufficiently clarify that he was not claiming that he served in Vietnam during that entire timeframe, but rather, that he was there on TDY. In cases such as these, if there is a doubt as to service incurrence, it is to be resolved in the veteran's favor. 38 C.F.R. § 3.102. There is no satisfactory evidence of record to disprove the claim. The evidence of record shows that the veteran's claim is within the range of probability, as distinguished from pure speculation or remote possibility. Mere suspicion or doubt as to the truth of any statements is not a justifiable basis for denying the application of the reasonable doubt doctrine, if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official documents. 38 C.F.R. § 3.102. In this case, the credible testimonial evidence described above and the pay stub, when considered with his military occupational specialty, and his receipt of the Vietnam Service Medal with three devices, the Republic of Vietnam Campaign Medal, and the Republic of Vietnam Gallantry Cross with device, place the evidence in relative equipoise. Thus, the Board finds, after resolving all doubt in favor of the veteran, that the veteran's service did involve visitation or duty in Vietnam for VA's purposes under 38 C.F.R. §§ 3.307 and 3.309. He was therefore "exposed" to an herbicide agent within the meaning of VA law. The evidence shows that he currently manifests prostate cancer with residuals. In conclusion, after consideration of the reasonable doubt doctrine, the claim for service connection for prostate cancer is granted. 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 (RS) 4597 Page 1 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 JUN 2003 (RS) 4597 Page 2