AGENT ORANGE ASSOCIATED DISORDERS APPROVED BVA DECISIONS OUTSIDE OF VIETNAM

IN ORDER BELOW OF:

GUAM - DIABETES TYPE II

Thailand - malignant lymphoma

Okinawa -  PROSTATE CANCER

Now they, (our government) have known about the use and storage for drop ship to Vietnam on Guam for decades.  Many Veterans have sent in photos of Agent Orange and White on Guam. 

Only the United States Government can spend millions of dollars cleaning up the toxic chemical mess on Guam and then deny the existence of the toxic chemicals even being there.  Pacific Dailey News had many articles on this subject.

Citation Nr: 0527748
Decision Date: 10/13/05 Archive Date: 10/25/05

DOCKET NO. 02-11 819 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts


THE ISSUE

Entitlement to service connection for diabetes mellitus
secondary to herbicide exposure.


REPRESENTATION

Veteran represented by: Massachusetts Department of
Veterans Services


WITNESSES AT HEARING ON APPEAL

The veteran and his brother


ATTORNEY FOR THE BOARD

L. J. N. Driever, Counsel


INTRODUCTION

The veteran had active service from December 1966 to December
1970, including in Guam from December 1966 to October 1968.

This claim comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts.

The veteran and his brother testified in support of this
claim at a hearing held at the RO before the undersigned in
May 2004. In September 2004, the Board remanded this claim
to the RO via the Appeals Management Center in Washington,
D.C.


FINDINGS OF FACT

1. VA provided the veteran adequate notice and assistance
with regard to his claim.

2. Diabetes mellitus is related to the veteran's active
service.


CONCLUSION OF LAW

Diabetes mellitus was incurred in service. 38 U.S.C.A. §§
1110, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159,
3.303 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002), became law. Regulations
implementing the VCAA were published at 66 Fed. Reg. 45,620,
45,630-32 (August 29, 2001) and codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The
VCAA and its implementing regulations are applicable to this
appeal.

The VCAA and its implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify the claimant and
the claimant's representative, if any, of the information and
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion
of the evidence is to be provided by the claimant and which
portion of the evidence VA will attempt to obtain on behalf
of the claimant.

The United States Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure strict compliance with
the provisions of the VCAA. See Quartuccio v. Principi, 16
Vet. App. 183 (2002). In this case, VA has strictly complied
with the VCAA by providing the veteran adequate notice and
assistance with regard to his claim. Regardless, given that
the decision explained below represents a full grant of the
benefit being sought on appeal, the Board's decision to
proceed in adjudicating this claim does not prejudice the
veteran in the disposition thereof. See Bernard v. Brown,
4 Vet. App. 384, 392-94 (1993).

Analysis of Claim

In multiple written statements submitted during the course of
this appeal and during his personal hearing, the veteran
alleged that he developed diabetes mellitus as a result of
his exposure to herbicide agents while serving on active duty
in Guam. His military occupational duties as an aircraft
maintenance specialist allegedly required him to work in an
air field, the perimeter of which was continuously brown due
to herbicide spraying every three months. The veteran also
alleges that he recalls seeing storage barrels at the edge of
the base, which he now knows housed herbicides. Following
discharge, Anderson Air Force base in Guam, where the veteran
was stationed, underwent an environmental study, which showed
a significant amount of dioxin contamination in the soil and
prompted the federal government to order a clean up of the
site.

Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004).
Service connection may also be granted for any disease
diagnosed after discharge 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).

Subsequent manifestations of a chronic disease in service,
however remote, are to be service connected, unless clearly
attributable to intercurrent causes. For the 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 diagnosis
including the word "chronic." Continuity of symptomatology
is required only where the condition noted during service is
not, in fact, shown to be chronic or when the diagnosis of
chronicity may be legitimately questioned. When the fact of
chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b).

In some circumstances, a disease associated with exposure to
certain herbicide agents will be presumed to have been
incurred in service even though there is no evidence of that
disease during the period of service at issue. 38 U.S.C.A.
§ 1116(a) (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e)
(2004). In this regard, a veteran who, during active
military, naval, or air service, served in the Republic of
Vietnam during the Vietnam era shall be presumed to have been
exposed during such service to a herbicide agent, unless
there is affirmative evidence to establish that the veteran
was not exposed to any such agent during that service. 38
U.S.C.A. § 1116(a)(3).

Diseases associated with such exposure include: chloracne or
other acneform diseases consistent with chloracne; Type 2
diabetes (also known as Type II diabetes mellitus or adult-
onset diabetes); Hodgkin's disease; multiple myeloma;
non- Hodgkin's lymphoma; acute and subacute peripheral
neuropathy; porphyria cutanea tarda; prostate cancer;
respiratory cancers (cancer of the lung, bronchus, larynx, or
trachea); and soft- tissue sarcomas (other than osteosarcoma,
chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38
C.F.R. § 3.309(e) (2004); see also 38 U.S.C.A. § 1116(f), as
added by § 201(c) of the Veterans Education and Benefits
Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976
(2001).

These diseases shall have become manifest to a degree of 10
percent or more at any time after service, except that
chloracne or other acneform disease consistent with
chloracne, porphyria cutanea tarda, and acute and subacute
peripheral neuropathy shall have become manifest to a degree
of 10 percent or more within a year after the last date on
which the veteran was exposed to an herbicide agent during
active military, naval, or air service. 38 C.F.R. §
3.307(a)(6)(ii). 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. "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).

The Secretary of Veterans Affairs has determined that there
is no positive association between exposure to herbicides and
any other condition for which the Secretary has not
specifically determined that a presumption of service
connection is warranted. See Notice, 59 Fed. Reg. 341, 346
(1994); see also 61 Fed. Reg. 41,442, 41,449 and 57,586,
57,589 (1996); 67 Fed. Reg. 42,600, 42,608 (2002).

Notwithstanding the aforementioned provisions relating to
presumptive service connection, which arose out of the
Veteran's Dioxin and Radiation Exposure Compensation
Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725,
2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L.
No. 102-4, § 2, 105 Stat. 11 (1991), the United States Court
of Appeals for the Federal Circuit has determined that a
claimant is not precluded from establishing service
connection with proof of direct causation. Combee v. Brown,
34 F.3d 1039, 1042 (Fed. Cir. 1994); see also 38 C.F.R. §
3.303(d).

In order to prevail with regard to the issue of service
connection on the merits, "there must be medical evidence of
a current disability, see Rabideau v. Derwinski,
2 Vet. App. 141, 143 (1992); medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of a
nexus between the claimed in-service disease or injury and
the present disease or injury. See Caluza v. Brown, 7 Vet.
App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Except as otherwise provided by law, a claimant has the
responsibility to present and support a claim for benefits
under laws administered by the Secretary. The Secretary
shall consider all information and lay and medical evidence
of record in a case before the Secretary with respect to
benefits under laws administered by the Secretary. When
there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The veteran's service medical records reflect that, during
service, the veteran did not report herbicide exposure. In
addition, he did not receive treatment for and was not
diagnosed with diabetes mellitus. His DD Form 214, DD Form 7
and Airmen Performance Reports dated in March 1968 and
October 1968, however, confirm that he had active service
from December 1966 to December 1970, including at Anderson
Air Force base in Guam from December 1966 to October 1968.

He has submitted copies of articles indicating that Agent
Orange may have been stored and/or used on Guam from 1955 to
the late 1960s, which is the time period during which the
veteran served there. These articles also reflect that in
the 1990s, the Environmental Protection Agency listed
Anderson Air Force base as a toxic site with dioxin
contaminated soil and ordered clean up of the site. Given
this evidence, particularly, the articles reflecting the
latter information, and the veteran's testimony, which is
credible, the Board accepts that the veteran was exposed to
herbicides during his active service in Guam.

The veteran did not serve in Vietnam; therefore, he is not
entitled to a presumption of service connection for his
diabetes mellitus under the aforementioned law and
regulations governing claims for service connection for
disabilities resulting from herbicide exposure. As
previously indicated, however, the veteran may be entitled to
service connection for this disease on a direct basis if the
evidence establishes that his diabetes mellitus is related to
the herbicide exposure.

Post-service medical evidence indicates that, since 1993, the
veteran has received treatment for, and been diagnosed with,
diabetes mellitus. One medical professional has addressed
the question of whether this disease is related to such
exposure. In June 2005, a VA examiner noted that the veteran
had had the disease for 12 years, had no parental history of
such a disease, and had served in Guam, primarily in an air
field, which was often sprayed with chemicals. She diagnosed
diabetes type 2 and opined that this disease was 50 to 100
percent more likely than not due to the veteran's exposure to
herbicides between January 1968 and April 1970, when he
served as a crew chief for the 99th bomb wing on the ground
and tarmac. She explained that such exposure, rather than
hereditary factors, better explained the cause of the disease
given that the veteran's parents did not have diabetes.

As the record stands, there is no competent medical evidence
of record disassociating the veteran's diabetes mellitus from
his in-service herbicide exposure or otherwise from his
active service. Relying primarily on the VA examiner's
opinion, the Board thus finds that diabetes mellitus is
related to the veteran's service. Based on this finding, the
Board concludes that diabetes mellitus was incurred in
service. Inasmuch as the evidence supports the veteran's
claim, that claim must be granted.


ORDER

Service connection for diabetes mellitus secondary to
herbicide exposure is granted.




____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs

 

AGENT ORANGE IN Thailand ASSOCIATED TO malignant lymphoma

Citation Nr: 0418252 

Decision Date: 07/09/04    Archive Date: 07/21/04

DOCKET NO.  99-08 894A         )              DATE

               )

               )

On appeal from the

Department of Veterans Affairs Regional Office in Newark, New 

Jersey

THE ISSUE

Entitlement to restoration of service connection for 

histiocytic type malignant lymphoma.

REPRESENTATION

Appellant represented by:         Veterans of Foreign Wars of 

the United States

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel

INTRODUCTION

The veteran served on active duty from August 1968 to August 

1972.

This matter comes before the Board of Veterans' Appeals 

(Board) on appeal from a July 1998 rating decision of the 

Department of Veterans Affairs (VA) Regional Office (RO) in 

Newark, New Jersey, severing service connection for 

histiocytic type malignant lymphoma.

In connection with this appeal, the veteran testified at a 

Travel Board hearing before the undersigned Acting Veterans 

Law Judge in December 2003.  A transcript of that hearing is 

associated with the claims file.

FINDINGS OF FACT

1.  The veteran was awarded service connection for 

histiocytic type malignant lymphoma in a January 1995 rating 

decision.  

2.  At the time of the initial award of service connection 

for histiocytic type malignant lymphoma, the record contained 

medical evidence confirming a diagnosis of histiocytic type 

malignant lymphoma shortly after discharge, the veteran's 

plausible allegations of in-service herbicide exposure, and 

corroboration of the veteran's service in Thailand and his 

maintenance work on B-57 aircraft.  

3.  The January 1995 award of service connection for 

histiocytic type malignant lymphoma was not clearly and 

unmistakably erroneous.

CONCLUSION OF LAW

The criteria for severance of service connection for 

histiocytic type malignant lymphoma were not met.  

38 U.S.C.A. § 5109A(b) (West 2002); 38 C.F.R. § 3.105(d) 

(2003).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

On November 9, 2000, the President signed into law the 

Veterans Claims Assistance Act of 2000 (VCAA), which has 

since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 

5103A, 5106, 5107, 5126 (West 2002).  This change in the law 

is applicable to all claims filed on or after the date of 

enactment of the VCAA, or filed before the date of enactment 

and not yet final as of that date.  The Board has considered 

this new legislation with regard to the issue on appeal and 

finds that, given the favorable action taken herein, no 

further notification or assistance pertinent to the issue on 

appeal is required.

The veteran challenges the propriety of the RO's severance of 

service connection for histiocytic type malignant lymphoma.  

Once service connection has been granted, it can be severed 

only upon the Secretary's showing that the rating decision 

granting service connection was "clearly and unmistakably 

erroneous," and only after certain procedural safeguards 

have been met.  38 C.F.R. § 3.105(d); Graves v. Brown, 6 Vet. 

App. 166, 170-71 (1994).  

The United States Court of Appeals for Veterans Claims 

(Court) has held that 38 C.F.R. § 3.105(d) places the same 

burden of proof on the VA when it seeks to sever service 

connection as 38 C.F.R. § 3.105(a) places upon a claimant 

seeking to have an unfavorable previous determination 

overturned.  Baughman v. Derwinski, 1 Vet. App. 563, 566 

(1991).  Clear and unmistakable error is defined the same 

under 38 C.F.R. § 3.105(d) as it is under 38 C.F.R. 

§ 3.105(a).  See Venturella v. Gober, 10 Vet. App. 340, 342 

(1997).  

The veteran claims that he was exposed to Agent Orange at 

Ubon, Thailand, where he worked on airplanes which were used 

for spraying herbicides in Vietnam.  Specifically, he states 

that he worked on Hayes Dispensers which were coated with a 

substance, which was foreign to him, and which he now 

believes was Agent Orange.  The veteran essentially 

reaffirmed his contentions during his December 2003 Travel 

Board hearing.

The veteran's service personnel records reflect that he had 

one year, three months, and two days of foreign and/or sea 

service.  These records further show that he served as a 

weapons mechanic at Ubon Airfield, Thailand.

Private treatment records show that the veteran complained of 

a mass at the right axillary region in November 1974.  A 

December 1974 cytology and tissue examination report reflects 

a microscopic diagnosis of changes in lymph nodes consistent 

with diagnosis of lympho histiocytic type of malignant 

lymphoma.  Subsequent medical records, including a May 1990 

report of VA examination for Agent Orange, show treatment for 

recurrent skin lesions.  

The rating decision that granted service connection for 

histiocytic type malignant lymphoma in 1995 listed the 

evidence used for the determination as the service 

administrative records, a May 1994 VA examination report, and 

private medical records.  The rating decision notes that, 

although the veteran did not serve in Vietnam, he presented a 

plausible explanation as to how he could have come in contact 

with Agent Orange and, given the fact that he had histiocytic 

type malignant lymphoma diagnosed in 1974, all reasonable 

doubt was resolved in his favor and service connection was 

granted and a schedular evaluation of 30 percent was 

assigned.  

Thereafter, in February 1995, the RO requested verification 

from the United States Army and Joint Services Environmental 

Support Group (ESG) as to the storage, handling, or use of 

Agent Orange at Ubon Airfield.  

In May 1995, the ESG responded that herbicides were not 

stored or sprayed near United States personnel in Thailand 

and that it was unable to confirm that the veteran worked on 

equipment that contained Agent Orange.  

In August 1995, the RO requested an advisory opinion from the 

Veterans Benefits Administration, Compensation and Pension 

Service, as to whether the January 1995 rating decision was 

clearly and unmistakably erroneous in granting service 

connection for histiocytic type malignant lymphoma.  

The Director of Compensation and Pension Service subsequently 

replied that action to sever service connection may not be 

initiated unless it can be clearly established that the 

veteran was never exposed to herbicide agents during his 

military service.  The RO was further advised that the burden 

of establishing this fact rests with VA.  

In an October 1997 rating decision, the RO proposed to sever 

service connection for histiocytic type malignant lymphoma.  

The veteran was advised of the proposed severance in an 

October 1997 letter.  

The veteran responded to the notification of the proposed 

severance in October 1997, stating that he was assigned to 

replace and inspect Hayes Dispensers while on duty in 

Thailand.  He said that the dispensers came from Vietnam and 

"were coated with an oily petrol type substance" which he 

believed was Agent Orange.  In addition, the veteran provided 

a copy of a performance report, dated in March 1971, which 

notes that he performed inspections and replacement of items 

on all assigned Hayes Dispensers.  

In a July 1998 rating decision, the RO severed service 

connection for histiocytic type malignant lymphoma on the 

basis that "the preponderance of the evidence is 

unfavorable" and "the rule regarding benefit of reasonable 

doubt does not apply."  The veteran disagreed with the July 

1998 rating decision and initiated this appeal.

In a September 1999 letter to the Director, Compensation and 

Pension Service, the veteran's accredited representative 

argued that it had not been shown by VA that there was no 

conceivable way to maintain service connection and, thus, the 

severance of service connection was premature.  Specifically, 

the veteran's representative argued that the veteran's claim 

of herbicide exposure as a result of contact with aircraft 

equipped with Hayes Dispensers had not been resolved.

In March 2000, the RO was instructed by the Director, 

Compensation and Pension Service, to contact the United 

States Armed Services Center for Unit Records Research 

(USASCURR) (formerly ESG) and request information about the 

possible contamination of the Hayes Dispensers which the 

veteran came into contact with during his tour in Thailand.  

In October 2001, USASCURR responded that it was unable to 

confirm or locate documentation indicating that Ranch Hand 

aircraft (used to spray herbicides over South Vietnam) 

originated from Ubon Air Force Base in Thailand.  However, 

USASCURR further stated that the "Hayes Company" developed 

the spray equipment used in the Ranch Hand defoliation 

program.  The issue of "possible contamination" of the 

Hayes Dispensers with which the veteran came into contact was 

not addressed.

In a June 2003 Supplemental Statement of the Case, the RO 

again declined to restore service connection on the basis 

that "the evidence does not establish that the veteran was 

exposed to Agent Orange while in service" and the "the 

preponderance of the evidence is against his claim, and there 

is no doubt to be resolved." 

The RO has simply applied the wrong legal standard.  As noted 

previously, 38 C.F.R. § 3.105(d) mandates that there be clear 

and unmistakable error in the prior rating decision in order 

to sever service connection, and the burden is on VA to 

produce evidence of such error.    While the RO stated "it 

has not been verified that the veteran handled, used, stored, 

or was in any way exposed to Agent Orange, or that he came 

into contact with equipment that may have been exposed to 

Agent Orange, during his service in Thailand" that statement 

is not correct.  In fact, the veteran did come into contact 

with equipment that may have been exposed to Agent Orange, 

the Hayes Dispensers.  

It is not disputed that the veteran served in Ubon, Thailand, 

and worked on the Hayes Dispenser weapons system on B57 

aircraft.  It is not disputed that the Hayes Dispenser 

weapons system and B57 aircraft were used in the Operation 

Ranch Hand defoliation program.  It is not disputed that the 

defoliation program continued during the time period the 

veteran worked on the Hayes Dispenser weapons system.  It is 

not disputed that the veteran developed a lympho histiocytic 

type of malignant lymphoma shortly after his discharge from 

active service.

On the other hand, it could not be verified that B-57G 

aircraft were used to spray herbicides during 1970 and 1971, 

and it could not be confirmed that Ranch Hand aircraft flew 

missions out of Ubon, Thailand. 

The RO essentially used a lack of information concerning 

herbicide exposure as the evidence to sever service 

connection.  This had the effect of placing the burden of 

proof on the veteran, impermissible under 38 C.F.R. 

§ 3.105(d), and insufficient to justify a finding of clear 

and unmistakable error in the grant of service connection.  

While, in hindsight, the decision to grant service connection 

for histiocytic type malignant lymphoma in 1995 may certainly 

be second-guessed, it may not be overturned based on the 

evidence of record.  Accordingly, service connection for 

histiocytic type malignant lymphoma is restored.  38 U.S.C.A. 

§ 5109A(b); 38 C.F.R. § 3.105(d).

ORDER

The appeal is granted, and service connection for histiocytic 

type malignant lymphoma is restored.

____________________________________________

               RONALD W. SCHOLZ

               Acting 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

AGENT ORANGE IN Okinawa ASSOCIATED TO PROSTATE CANCER

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, 

California

THE ISSUE

Entitlement to 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 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 

(1996).

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 

F.3d 1039(1994).

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 

(1992).

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 

(1996).

Factual Background

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 

there.

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 

information. 

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.

Analysis

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 

Ranchhand].

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 

development.  

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 

information.  

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.

ORDER

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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