Citation NR: 9800877
Decision Date: 01/13/98 Archive Date: 01/21/98
DOCKET NO. 97-05 078 ) DATE )
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
Entitlement to service connection for prostate cancer due to
Agent Orange exposure.
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
Alice A. Booher, Counsel
The veteran had active service from July 1960 to October
This appeal to the Board of Veterans’ Appeals (the Board) is
from rating action by the Department of Veterans Affairs (VA)
Regional Office (RO) in Salt Lake City.
The veteran testified before a Hearing Officer at the RO in
March 1997. A transcript of the hearing is of record. [Tr.]
The Board remanded the case in October 1997 for clarification
with regard to a Travel Board hearing. The veteran has since
asked that the appeal proceed expeditiously without an
additional personal hearing.
The Board notes that the veteran also has service connection
for major depression (previously diagnosed as schizophrenic
reaction), currently evaluated as 70 percent disabling.
During the course of this appeal, the veteran’s claim with
regard to an increased rating for that disability was denied
in a rating by the RO in August 1997, and the veteran was so
informed and advised of his appellate rights.
At virtually the same time as the Board remand was dispatched
on the Agent Orange issue, a packet containing the veteran’s
responses to the RO decision with regard to his psychiatric
rating was received by the Board without written waiver of
initial RO consideration pursuant to 38 C.F.R. § 20.1304(c).
It is unclear whether the packet was or was not included with
the claims folder when it was returned to the RO for the
development on remand, but there is no RO reference to the
contents thereof in the claims folder.
There is no Substantive Appeal, i.e., a VA Form 9 or anything
in lieu thereof, in the file, and thus, that issue is not
before the Board at present. However, the Board calls the
attention of the RO thereto for required processing of that
claim under all pertinent criteria.
CONTENTIONS OF APPELLANT ON APPEAL
In substance, the veteran argues that while he was never in
Vietnam, per se, his exposure to dioxins including Agent
Orange and others, was extensive as a result of loading
planes and in other circumstances while he was stationed in
Okinawa and that his prostate cancer is the result thereof.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the record supports a grant of
entitlement to service connection for prostate cancer due to
Agent Orange exposure.
FINDINGS OF FACT
1. Credible evidence sustains a reasonable probability that
the veteran was exposed to dioxins while serving in Okinawa.
2. The veteran’s recent prostate cancer must be reasonably
attributed to his inservice dioxin exposure.
CONCLUSION OF LAW
The veteran’s prostate cancer is the result of inservice
dioxin exposure. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38
C.F.R. §§ 3.303, 3.307, 3.309 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection may be established for a disability
incurred in or aggravated by active service. 38 U.S.C.A.
§ 1110 (West 1991). Additional provisions are to the effect
that service connection may be presumed in the case of a
veteran who served continuously for 90 days or more during a
period of war, if a certain disease, i.e., cancer, was
present to a compensable degree within a year of separation
from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West
1991 & Supp. 1997); 38 C.F.R. §§ 3.307, 3.309 (1997).
For a showing of chronic disease in service there is required
a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word “chronic”.
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, the showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b) (1996).
Service connection may 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) (1996). Service
connection may be granted for disability which is the result
of service-connected disease or injury. 38 C.F.R. § 3.310
Under modifications described below in 38 C.F.R. § 3.307,
[and through a new regulatory revision effective November
1996], if a veteran was exposed to an herbicide agent during
active military, naval, or air service, the following
diseases [i.e., prostate cancer] shall be service-
connected...even though there is no record of such diseases
during service. 38 C.F.R. § 3.309(e) (1996).
In pertinent part, 38 C.F.R. § 3.307(6)(ii) (1996) further
states that in general except for chloracne, these diseases
so named must become manifest to a degree of 10 percent or
more at any time after service.
Provisions of 38 C.F.R. § 3.307(6)(iii) (1997) further state
that such a veteran who served in the Republic of Vietnam
during the Vietnam era and has such a (listed) disease shall
be presumed to have been exposed to the herbicides. However,
presumptive provisions are not intended to limit service
connection to diseases so diagnosed when the evidence
warrants direct service connection. The presumptive
provisions of the statute and VA regulations implementing
them are intended as liberalizations applicable when the
evidence would not warrant service connection without their
aid. See Horowitz v. Brown, 5 Vet. App. 217, 222 (1993).
In a case relating to radiation exposure, but which has been
transferred in theory to other situations, the Court has held
that special presumptions, etc. and/or other standards do not
preclude a veteran from establishing service connection with
proof of actual direct causation. See Combee v. Brown, 34
It remains the duty of the Board as the fact finder to
determine credibility of the testimony and other lay
evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297
(1992). Lay persons are not competent to render testimony
concerning medical causation. See Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993). However, service connection may be
established through competent lay evidence, not medical
records alone. Horowitz, op. cit. In such a case, as in
other situations dealing with special provisions of 38
U.S.C.A. § 1154, an individual may well provide data with
regard to incidents which took place, etc. although a lay
witness is not capable of offering evidence requiring medical
knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494
The Board has the duty to assess the credibility and weight
to be given the evidence. Wilson v. Derwinski, 2 Vet.
App. 614, 618 (1992) (quoting Wood v. Derwinski, 1 Vet.
App. 190, 193 (1991), reconsideration denied per curiam,
1 Vet. App. 406 (1991)).
It has been determined that a well-grounded claim requires
three elements: (1) medical evidence of a current disability;
(2) lay or medical evidence of a disease or injury in
service; and (3) medical evidence of a link between the
current disability and the in-service injury or disease.
Caluza v. Brown, 7 Vet. App. 498 (1995).
In a case that coincidentally also provides significant
supportive data regarding claims with regard to Agent Orange
and the legislative and other machinations associated
therewith, the United States Court of Veterans Appeals (the
Court) recently found that plausible medical evidence of the
existence of a current presumptively service-connected
disease with an open-ended presumption period is sufficient
to present a well-grounded service connection claim as to
that disease. The case also holds that the presence of the
disease would carry with it the presumption of nexus to
service as well. See Brock v. Brown, 10 Vet. App. 155, 162
The veteran’s DD 214 shows that his primary military
specialty was as a motor vehicle operator (MOS 3531). At the
time of his discharge, he was assigned to the U.S. Marine
Corp’s 4thAMTrac Bn(Reinf), ForTrps, FMF after having had 1
year, 3 months and 3 days of foreign service. His partial
201 file also further documents the units to which he was
assigned in that motor vehicle operator capacity.
According to a NAVMC Form 118(17)-PD, the veteran embarked
onboard the USNS GEN. J.C. BRECKENRIDGE in and departed from
San Diego on February 2, 1961; he arrived in and disembarked
in Okinawa on February 18, 1961. He further embarked onboard
the USS BEXAR at White Beach, Okinawa on April 5, 1962,
departed Okinawa on April 6, 1962, and arrived in and
disembarked in San Diego on May 5, 1962.
Service medical records show that after several months in
Okinawa, he was admitted to hospitalization for psychiatric
evaluation after having attempted suicide due to, among other
things, the stressful (not otherwise described) situation
The veteran has described his inservice experiences as not
having included Vietnam. In a letter in December 1996, he
stated that his job in the Marines was as a motor transport
operator, which was to transport troops and cargo. At the
time, they had been on Vietnam standby, and he reported that
he had been exposed to Agent Orange while in the process of
transport, as well as when it was used in Northern Okinawa
for War Games training. He reported that this exposure
lasted at least two months or more.
Private clinical records in the file from David A. Kimball,
MD, who has treated the veteran for prostate cancer after
prostate-specific laboratory testing had been positive. The
veteran underwent a radical retropubic prostatectomy for the
prostate cancer, pathologically described as moderately well
differentiated adenocarcinoma, in November 1995. Thereafter,
records show he was seen for complaints associated with
hesitant urinary stream. He underwent surgery for a bladder
neck contracture post radical retropubic prostatectomy.
In his VA Form 9, dated in January 1997, the veteran
reiterated that he was not and had never claimed that he was
in Vietnam but that, as stated by the RO in rating decisions
and other communications, service connection for certain
disabilities under the new regulations relating to herbicide
exposure could be either from being in Vietnam in which case
exposure was assumed, or as a result of some other military
experience, which was subject to the same requirement of any
other acquired disability. He stated further that
I served in Okinawa in 1961-62 at which
time we began a massive build-up of
supplies and ordnance which included
herbicides known as 2, 4, D and 2, 4, 5,
T. The combined product of these two
chemicals was a 50-50 mix which was then
mixed 50-50 with diesel fuel and given
the code name “Agent Orange”, for the
orange band that was used to mark the
drums it was stored in. The purpose of
the product was to deny an enemy cover
and concealment in dense terrain by
defoliating trees and shrubbery where the
enemy could hide. In Okinawa we had
other uses for it, particularly near base
camp perimeters. Spraying from both
truck and back pack were utilized along
roadways too. The term “Agent Orange” was
at the time merely one of several used to
identify various herbicides used in the
South Pacific. Others included Agents
White, Blue, Purple, Pink and Green.
Agent Orange was used by far the most.
It was my job, MOS-3531 Motor Transport
operator (see DD-214 #25 A&B as evidence)
to transport troops and cargo. On many
occasions the cargo was herbicides known
as 2-4-D and 2-4-5T. Sometimes they were
full and sometimes they were empty.
Sometimes the drums were half full of a
50-50 mix of herbicides and I would have
to take them and add the remaining 50% of
diesel fuel or kerosene for better
dispersion. On many occasions while
handling the drums the contents would get
on my hands and clothing and when we were
spraying along the roadways by truck and
back pack the wind would change and blow
the herbicides onto our skin and
clothing. The thing that bothers me the
most is that we were not told or warned
about the hazards of the herbicides that
we were handling nor were we issued any
protective clothing such as gloves and
etc. I believe that the frequent
exposure to the concentrated unmixed
herbicides was much more hazardous than
if I would have been sprayed with a
diluted thin down mixture.
At the time of the hearing held at the RO in March 1997, the
veteran further testified that while in Okinawa, he was a
motor transport operator, whose job it was to transport
troops and cargo, often times the cargo being herbicides.
Tr. at 1. He stated that he would often transport people for
work details and had even worked with the Seabees with whom
he helped with road repairs, where they also used herbicides,
spraying them on the sides of the roads, etc. Tr. at 1-2.
He indicated that (even when not moving people but rather
supplies), he often had to take the barrels and mix the
contents at the motor pool with a 50/50 mixture of diesel
fuel; that often his clothing became saturated with and he
had to replace uniform parts so as to be able to pass
inspection. Tr. at 2.
The veteran indicated that herbicides were used on Okinawa
for landscaping, and were also taken to the remote areas for
training maneuver areas. Tr. at 2. He confirmed that he had
been assigned in Okinawa to the C Company, 9th Motor
Transport Battalion, 3rd Marine Division Reinforced, and that
he was exposed to herbicides that entire time. Tr. at 3. He
summarized by indicating that he had been exposed by the
spraying in the area perimeters (which they were required to
police themselves), on the sides of the roads, on details, at
maneuver areas, when he mixed them for transport and when he
actually sprayed them from back pack. Tr. at 3. He said
that they were only told that it was a defoliant used for
killing weeds, etc. Tr. at 3-4.
The RO asked the U.S. Army and Joint Services Environmental
Support Group (ESG), now known as U.S. Armed Services Center
for Research of Unit Records (USASCRUR) to verify any
exposure to herbicides the veteran may have had while in
Okinawa. The ESG responded in April 1997 to the effect that
they had been generally unable to document the use of
herbicides in Okinawa, but that they had sent copies of
various Agent Orange briefs, etc. for the veteran’s
Correspondence from the veteran in January 1997 reiterated
his repeated Okinawan exposure to herbicides, and further
indicated that at that time, “Operation Ranch Hand” was
already in full swing in January 1961. He said that they
primarily handled Agent Orange since it was not, and the
others were, water soluble and would not wash away when used.
This was particularly important for use in Vietnam but also
in Okinawa (for the other purposes) because of the
significant amount of rain that fell there.
In a case such as this, there are several kinds of pertinent
service records. Admittedly, available service medical
records are somewhat wanting since they primarily relate to
the veteran’s significant psychiatric problems later in
service rather than dioxin exposure, etc. It is entirely
possible that additional service medical records are
somewhere available. However, given the pertinent
regulations, there would seem to be no special benefit to be
gained by delaying the claim further in a search for
additional but unnecessary records.
Also of record are some other service documents, i.e., data
comparable to a partial 201 file which confirm assignment
units, duties, locations, etc., identified elsewhere in this
decision. In this case, these are more important to the
disposition of the case. In that regard, it is not known if
additional pertinent records may be readily if at all
available. To the extent that the veteran is able to provide
pertinent information, he has clearly done so. An attempt
was made to officially verify those factors. However, while
the service department experts have been unable to verify
specific dioxin exposure in Okinawa, they do not negate that
possibility. [In this regard, it should be noted that given
the records-development history in other factual cases with
which the Board is familiar, that there is no guarantee that
even if further development were undertaken, that Army
Personnel or other military sources would be able in any
event to verify the filling of, and mixing of solvents in, 55
gallon drums with herbicides in Okinawa for use in this
particular time period, including as a part of Operation
In order, however, to fill in the resultant gaps, there are
certain factors which the Board must address with regard to
credibility. If found credible, these could be adequate for
an equitable disposition of this claim without further
Accordingly, in concert with that judgment and consistent
with providing the veteran with all due process and the
benefit of the result of an expeditious and equitable
decision, the Board finds that the duty to assist the veteran
in obtaining evidence has been fulfilled in this case
pursuant to pertinent regulations.
In this case, the veteran clearly has had prostate cancer,
which as of November 1996 is one of those diseases
incorporated in the special presumptions with regard to
disabilities as a result of exposure to Agent Orange.
Thus, the only significant issue to be resolved is whether he
was in fact exposed to dioxins in service. The evidence in
this regard may not be independently verifiable or
overwhelming, but the aggregate data is entirely consistent
therewith. In that regard, the Board finds that the
veteran’s explanations for the gaps in the otherwise
contemporaneously documented information of record in that
regard are quite credible. He has provided a comprehensive
description of the activities through which he was exposed to
concentrated dioxins, as well as the reasons why the mixing
of the concentrated chemicals with diesel fuel or other
agents was necessary. [Parenthetically, it is unnecessary in
this context to address his opinion that the dioxin in its
concentrated state, i.e., before he mixed it, was more toxic
than the dispersed version sprayed as a defoliant in whatever
location for whatever purpose].
These asserted facts mesh well with those more readily
recognizable things for which there is no need for
verification, i.e., why the secondary chemicals utilized for
dilution of the concentrates, such as diesel fuel or
kerosene, would have been most readily, and perhaps almost
exclusively, available in the environment in which the
veteran then worked.
They also make good common sense when placed next to the
known problems such as the ongoing rain in the Far East
during that portion of the year which made the requirement
for nonsoluble defoliants a reality in the first place. All
are entirely believable and consistent with the other known
The service department has verified that the veteran was
indeed where he said he was, at a time when military build-up
from a support standpoint was considerable, doing a job which
was entirely consistent with the mixing and other transport
of herbicides, and at a time when these were both used and
warnings not necessarily given, as he stated, since the
hazards were not fully understood. He can scarcely be
faulted for the no verifiability of specific practices in the
so-called Okinawan theater of operations. His assertions in
that regard are both reasonable and justifiable and appear
both sound and factually accurate, all of which raises a
certain premise from which conclusions may be reasonably
drawn. It is exactly such situations in which the Court has
mandated that the Board make judgments with regard to
ultimate and relative credibility, which in this case, the
Board finds in the affirmative.
Thus, having concluded that the veteran was exposed to
herbicides while assigned to motor transport duties in
Okinawa in 1961-2, not coincidentally concurrent with other
entirely reasonable circumstances enumerated by the veteran,
the Board finds that a doubt is thus raised which must be
resolved in his favor, and in so doing, that service
connection must be granted for prostate cancer as being the
result of Agent Orange exposure under pertinent exceptions to
the regulations. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§
3.303, 3.307, 3.309.
Service connection for prostate cancer due to Agent Orange
exposure is granted.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue, which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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