Example of a Positive VA Award - Agent Orange Exposure outside Vietman

This positive finding is important: it established Agent Orange for a veteran able to prove he was exposed to Agent Orange outside Vietnam, claiming it was sprayed around the base area. We should be able to use a similar argument before the VA!
-------- Citation NR: 9800877-------

Decision Date: 01/13/98 Archive Date: 01/21/98  DOCKET NO.  97-05 078

On appeal from the Department of Veterans Affairs Regional Office San Diego, CA

ISSUE: Service connection for prostate cancer due to Agent Orange exposure.

WITNESS AT HEARING ON APPEAL: Appellant

ATTORNEY FOR THE BOARD, Alice A. Booher, Counsel

INTRODUCTION: The veteran had active service from July 1960 to October 

1963. 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

Criteria

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