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Court Wins

CCK Helps Vietnam War Era Veteran Secure Benefits for Prostate Cancer After VA Error

November 3, 2021
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Facts of the Case

The Veteran served in the Air Force from June 1971 to June 1975.  Throughout his service, the Veteran worked as a Weapons Mechanic at the Udorn and Korat Air Force Bases in Thailand

In 2012, the Veteran filed a claim for service connection for prostate cancer, erectile dysfunction, arrhythmia, and bladder issues.  A rating decision was issued in 2014 by the RO denying the claim.  The Veteran did not appeal the decision, but instead filed a new claim for service connection for prostate cancer and arrhythmia in August 2015.  A December 2015 rating decision denied the claim.  The Veteran filed a Notice of Disagreement the following January of 2016.  In November 2017, a Statement of the Case denied the claim once again.

CCK Fights on Veteran’s Behalf

In December 2017, CCK took the case and began representing the Veteran.  CCK filed a VA9 Appeal on December 27, 2017.  The Board of Veterans’ Appeals did not issue a decision until May of 2019, whereupon the Board granted service connection for prostate cancer.  A September rating decision then granted a 100 percent rating for the prostate cancer status post prostatectomy associated with herbicide exposure, as well as service connection for erectile dysfunction, surgical scars, and special monthly compensation for loss of use of a creative organ.

CCK Submits Appeal for Earlier Effective Date

Although the Veteran had been awarded service connection, the effective date only went back to 2015.  CCK knew the Veteran should be eligible for an earlier effective date.  As such, CCK filed a Higher-Level Review appeal on August 31, 2020.

CCK asserted that the Veteran, after filing the first claim in 2012, was denied on the basis that VA could not document exposure to Agent Orange or other herbicides during his service in Thailand.  However, when VA eventually did grant service connection with the May 2019 BVA decision, it meant that the original denial of the 2012 claim was erroneous.

As outlined under 38 C.F.R. § 3.156(c), VA is required to reconsider a claim if new and relevant documentation, which was not associated with the veteran’s claims file at the time of the initial decision, is submitted.  As such, CCK submitted new and relevant documentation in the form of an official transcript from the Air Force Historical Research Agency regarding Agent Orange use at the Udorn Royal Thai Air Force, a field manual detailing the tactical deployment of herbicides circa 1971, and a redacted copy of a memorandum from the Department of Defense concerning Armed Forces Pest Management.  This documentation proved crucial in establishing service connection.

While the Veteran’s 2012 denial was never appealed, the fact that VA went on to acknowledge herbicide exposure and establish service connection with the May 2019 BVA decision meant that the original 2012 claim needed to be reconsidered and that the Veteran was essentially eligible for an effective date as early as 2012.

Veteran Awarded Substantial Benefits

Finally, in February 2021, the Regional Office issued a rating decision which established that a clear and unmistakable error was made in the denial of the Veteran’s original 2012 claim.  As such, the Veteran was to be awarded benefits for a 100 percent rating for prostate cancer and special monthly compensation based on loss of use of a creative organ dating back to February 28, 2012.  The grants of service connection for erectile dysfunction and surgical scars were also upheld in the decision.

With CCK’s help, the Veteran was awarded the benefits he deserved, stemming back to when he filed his first claim for prostate cancer in 2012.