Citation Nr: 1521074 Decision Date: 05/18/15 Archive Date: 05/26/15 DOCKET NO. 12-20 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as secondary to exposure to herbicides and/or ionizing radiation. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1950 to November 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction is now with the St. Petersburg, Florida RO. The Veteran testified before the undersigned via teleconference in January 2015. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence establishes that the Veteran's prostate cancer is due to exposure in service to herbicides, to include Agent Orange. 2. Resolving all reasonable doubt in favor of the Veteran, the Veteran's erectile dysfunction is due to his service-connected prostate cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014). 2. The criteria for service connection for erectile dysfunction have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2014). As this decision is fully favorable to the Veteran, even if the duties to notify and assist the Veteran were not met, no prejudice to him could have resulted. As such, a discussion as to whether VA has met its duties to notify and assist is not necessary at this time. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is warranted for a disability which is aggravated by, proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition is considered a part of the original condition. Id. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service, the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases include prostate cancer. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. Prostate Cancer The Veteran claims his prostate cancer had onset as a result of exposure to radiation, or in the alternative, herbicide exposure while stationed at the Rocky Mountain Arsenal during active duty. The Veteran's DD 214 confirms that the Veteran was stationed with the 216th Chemical Service Company at the Rocky Mountain Arsenal during active service. In an August 2012 statement, the Veteran described being part of the Decontamination Section of the 216th Chemical Company during active duty. In particular, he described the cleaning and decontamination of chemical leaks and accidental spills. He alleged exposure to numerous chemical agents, including Agent Orange. In his January 2015 hearing, the Veteran indicated that his company was called in to the Shell Oil Production Plant to aid in the cleaning of a spill of agent orange, testifying that the company had to "flush the whole building out", despite the lack protective clothing. The Veteran's testimony is corroborated by a statement from G.D.F., a platoon sergeant who served with the Veteran at the Rocky Mountain Arsenal. Essentially, the statement documented different examples of the Veteran's exposure to herbicides and radiation. G.D.F. explained that he was the noncommissioned officer in charge of the Decontamination Section of 216th Chemical Service Company. According to G.D.F., the Decontamination Section primarily dealt with various leaks of chemical munitions manufactured or stored at the Rocky Mountain Arsenal, including Agent Orange. The statement described an occasion where the company was called to clean up a spill at the Shell Oil Production Plant due to a damaged container of Agent Orange. G.D.F. detailed that the Veteran was present during the clean-up and that generally, the company was not provided with protective clothing. In another buddy statement submitted by C.L., a serviceman who also served in the Decontamination Company of the 216th Chemical Service, C.L. described several occasions of the company's assistance in "wash downs", which consisted of flushing spilled chemical agents with hoses. Agent Orange is among the chemical agents listed by C.L. in his statement. The statement corroborates the Veteran's statements pertaining to exposure to herbicide agents as well as G.D.F.'s statements to the same effect. Additionally, the statements of record correspond with publicly available records that pertain to the Rocky Mountain Arsenal during the time period encompassing the Veteran's period of active duty.1 The Veteran has testified credibly on this matter, and his statements and testimony are corroborated by statements from fellow servicemen with whom he served and by outside sources. Thus, the Board concludes that the evidence of record is in relative equipoise on the question of whether the Veteran's military duties caused exposure to herbicide agents, to include Agent Orange. Therefore, the Board resolves the question in the Veteran's favor. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the Board is granting the benefit sought on a theory of entitlement based on herbicide exposure, addressing the merits of the Veteran's claim with regard to ionizing radiation exposure is unnecessary. Erectile Dysfunction The Veteran claims he has erectile dysfunction that is secondary to prostate cancer, a disability for which the Board grants service connection in the instant decision. A private treatment record from Urology Associates, LTD, from June 2009, shows impotence as a symptom in relation to the Veteran's diagnosis of prostate cancer. Also, in his January 2015 hearing, the Veteran testified that he developed symptoms of erectile dysfunction immediately after receiving treatment for prostate cancer. First, given the June 2009 private treatment record, the Board finds that the Veteran has a present diagnosis of erectile dysfunction, and the first element of service connection is met. Next, given the indication of a nexus between the Veteran's erectile dysfunction and his prostate cancer in the June 2009 private treatment record, as well as the Veteran's credible testimony that shows a temporal relationship between the onset of symptoms of erectile dysfunction and his treatment for prostate cancer, the Board finds that the weight of the evidence is at least in relative equipoise. Thus, resolving doubt in the Veteran's favor, the Board finds that the Veteran's erectile dysfunction was caused or aggravated by his service-connected prostate cancer. Accordingly, service connection must be granted. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for prostate cancer is granted. Service connection for erectile dysfunction is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs