Citation Nr: 0739875 Decision Date: 12/19/07 Archive Date: 12/26/07 DOCKET NO. 03-14 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as due to exposure to Agent Orange in service. 2. Entitlement to service connection for prostate cancer, including as due to exposure to Agent Orange in service. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran retired from active duty in February 1978 with more than twenty years of active service. This appeal arises from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The veteran withdrew the issue of service connection for a heart disorder in May 2006. 38 C.F.R. § 20.204 (2007). The issues are therefore limited to those reflected on the title page. FINDINGS OF FACT 1. Service personnel records document that veteran served in Korea, including from May 1969 to August 1971 with Company A of the 51st Signal Battalion. 2. The Department of Defense has notified VA that Agent Orange was used in Korea along the demilitarized zone (DMZ) from April 1968 to July 1969. Units in the area which was sprayed included the Signal troops who were supplied as support personnel. 2. The veteran's records of treatment from Wilford Hall Medical Center, include May 2002 diagnosis of adenocarcinoma of the prostate, and diagnoses and treatment for diabetes mellitus, Type II. CONCLUSIONS OF LAW 1. Service incurrence of diabetes mellitus II may be presumed. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). 2. Service incurrence of prostate cancer may be presumed. 38 U.S.C.A. §§ 1110, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has resolved the claim favorably, there can be no prejudice due to any defect associated with VA compliance with the duties to notify or to assist, therefore, no further discussion as to this matter is required. Relevant Laws and Regulations. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, 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)(2007). The diseases listed at 38 C.F.R. § 3.309(e) 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 and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within one year, and respiratory cancers within 30 years, 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) (2007). Factual Background and Analysis. As the claims folder includes evidence demonstrating current diagnoses of both diabetes mellitus, Type II and prostate cancer, the pivotal question is whether the veteran was exposed to Agent Orange in service. Service personnel records document the veteran served in Korea on multiple tours of duty, including from May 1969 to August 1971 with Company A of the 51st Signal Battalion. In January 2003, the Chief Office for Public Health and Environmental Hazards of VA received notice from the Assistant Secretary of the Department of Defense (DOD) that an inventory of documents which contained brief descriptions of records of herbicide orange operations and geographic locations was being forwarded to U.S. Army Center for Unit Records Research [ now designated as the Joint Services Records Research Center (JSRRC)]. In March 2003, VA sent out a Veteran Service Manager Call entitled Agent Orange Outside of Vietnam. It noted that Agent Orange had been used in Korea along the DMZ. DOD had confirmed that Agent Orange was used in Korea from April 1968 through July 1969 along the DMZ. Records indicate the effects of spraying were sometimes observed as far as 200 meters down wind. Units in the area during the period included "Signal" troops supplied as support personnel. The veteran in May 2006 submitted a statement from a fellow soldier who corroborates that his duties included providing support for meetings in the DMZ. These duties included running cable from there to the south and retrieving it each evening when the meetings were over. The veteran appeared and gave testimony at a videoconference hearing before the undersigned Veterans Law Judge in November 2007. He stated that his duties included providing communications support for meetings at one of the missions in the DMZ, in Pyongyang. This included providing cable between telephone exchanges to that area. (T-1,2,3,4,5) The Board has concluded that although the veteran was not assigned to one of the specific units identified as stationed in the area, he did supply support to one of those units which required his presence in the area sprayed with Agent Orange. The March 2003 communication to Veteran Service Center Managers lists not only units in the area but lists "Field Artillery, Signal and Engineer Troops" who were supplied as support personnel. At his hearing before Decision Review Officer at the RO in May 2006 the veteran testified he served in support of the 7th Division. The March 2003 communication specifically lists the 7th Infantry Division as being among those in the area during the use of herbicides. In an analogous situation, in Suozzi v. Brown, 10 Vet App. 124, 128 (2002) it was held that it was sufficient that a veteran's unit records corroborated his testimony and statements as to his whereabouts and that corroboration of every single detail including the veteran's personnel participation was not required. See also Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). The evidence satisfactorily demonstrates the veteran was in the area of Korea in which herbicides were sprayed and present during the period when spraying of Agent Orange occurred. As the evidence supports a finding that the veteran was exposed to Agent Orange in service, the presumptive service connection provisions of the regulation are applicable. 38 C.F.R. §§ 3.307 and 3.309 (2007). Service connection for diabetes mellitus, Type II and prostate cancer is warranted based on application of the regulations providing presumptive service connection based on exposure to Agent Orange in service. ORDER Service connection for diabetes mellitus is granted. Service connection for prostate cancer is granted. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs