Citation Nr: 1005484 Decision Date: 02/05/10 Archive Date: 02/25/10 DOCKET NO. 05-21 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for prostate cancer, due to herbicide exposure. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1971. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). This case was remanded by the Board in January 2007 for additional development. FINDINGS OF FACT 1. The medical evidence of record shows that the Veteran has a current diagnosis of prostate cancer. 2. The competent evidence of record shows that the Veteran was exposed to Agent Orange during active military service. CONCLUSION OF LAW Prostate cancer is presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1116, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, 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). Additionally, 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 an 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(f); 38 C.F.R. § 3.307. The following diseases are deemed associated with herbicide agent exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, 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), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma and diabetes mellitus (Type 2). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309. While all Veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent, the Veteran's service personnel records do not show that he ever served in Vietnam, nor does he claim that he did. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307. Instead, the Veteran claims exposure to Agent Orange while serving in Korea, near the Demilitarized Zone (DMZ). VA has established a procedure for verifying exposure to herbicides along the DMZ in Korea. See M21-1IMR, Part IV, Subpart ii, Chapter 2, Section C. The United States Department of Defense (DOD) has acknowledged that herbicides were used in Korea from April 1968 through July 1969 along an area of the DMZ. DOD defoliated the fields of fire between the front line defensive positions and the south barrier fence, including a strip of land 151 miles long and up to 350 yards wide from the fence to north of the "civilian control line." The DOD publication with respect to herbicide agent use in Korea during the stated period includes a list of specific military units. Veterans assigned to one of the units listed as being at or near the Korean DMZ during that time period are presumed to have been exposed to herbicide agents. The list of units in the affected area at the time Agent Orange was being used includes multiple elements of the 2nd and 7th Infantry Divisions, United States Army, and the United Nations Command Security Battalion-Joint Security Area. See Id. The Veteran's service treatment records are negative for any diagnoses of prostate cancer. After separation from military service, a July 2004 biopsy report gave a diagnosis of invasive moderately to poorly differentiated adenocarcinoma in the prostate. The medical evidence of record shows that the Veteran has a current diagnosis of prostate cancer. Accordingly, if the Veteran is found to have been exposed to an herbicide agent during military service, to include Agent Orange, presumptive service connection is warranted for the Veteran's prostate cancer. The Veteran's service personnel records show that he served in Korea from February 1969 to early 1970. In a November 2004 statement, the Veteran reported actually commencing service in Korean earlier in January 1969, and this statement is not inconsistent with his service personnel records. This time period includes 7 months during which DOD has confirmed that Agent Orange was used along the DMZ. Accordingly, if the Veteran is found to have served in or along the DMZ during his time in Korea, the preponderance of the evidence will show presumptive exposure to Agent Orange. The Veteran's service personnel records indicate that his entire period of service in Korea was with Company B, 707th Maintenance Battalion, 7th Infantry Division. Company B of the 707th Maintenance Battalion is not one of the listed units in the DOD publication provided under the 7th Infantry Division. However, in written statements and sworn testimony before the Board sitting at a hearing conducted at the RO in May 2006, the Veteran has provided competent credible evidence that Company B of the 707 the Maintenance Battalion was stationed on a hill called "Charley Block" which was one mile of the DMZ, and that he and other members of his maintenance battalion provided maintenance support to artillery and other units of both the 7th and 2nd Infantry Division along the DMZ during his period of overseas service in Korea. The Veteran's service personnel record lists his duty as Fuel Electrical System Repairman. This is consistent with his contentions as to the type of duties performed during his service in Korea. In a March 2006 statement, a friend of the Veteran reported that he served with the Veteran in Korea in the Company B of the 707th Maintenance Battalion. The friend stated that they were stationed in the 2nd Infantry Division on a mountain hill called "Charlie Block" just off the DMZ. The friend also stated that their duties included supporting the 2nd Infantry units with repair work, and provided details regarding the repair work performed during the year of 1969. The Veteran's service personnel record confirms that the friend actually served with the Veteran in the same maintenance battalion for the claimed time period, and the friend's statement is not inconsistent with the record. The Board remanded the case in January 2007 for further development to determine the actual physical location of the Veteran's unit during the time when he was stationed with that unit and determine the types of activities and duties performed by members of that unit during the identified time, mandating a records research by the US Army & Joint Services Records Research Center (JSRRC) in accordance with the VA Adjudication Manual (M21-1). A January 2009 JSRRC letter indicated that the historical documentation submitted by the 707th Maintenance Battalion showed that it was base camped at Camp Casey, approximately 13 miles from the DMZ. It indicated, however, there was no specific documentation to verify that the battalion performed duties along the DMZ or that unit members travelled to DMZ. In his December 2009 additional submission, the Veteran stated that Company B/707th Battalion was actually stationed at Camp Paine, not Camp Casey, which served as the headquarters. He also submitted a photograph claimed to be Camp Paine in June of 1969, with the specific work area of the Company B/707th Battalion marked in the picture. In summary, the evidence of record shows that the Veteran served in Korea for 7 months of the period in which DOD has confirmed that Agent Orange was used at the DMZ. While the JSRRC finding does not clearly identify the specific location at which the Veteran was stationed, or the type of duties performed by his unit, the Board highlights that there is no basis in the record to question the Veteran's credibility regarding his statements. The statements by both the Veteran and the friend of the Veteran indicate that they were stationed in close proximity to the DMZ and performed various repair work for the 2nd Infantry Division, which is one of the units with multiple elements conceded to have been exposed to Agent Orange in Korea. The Veteran's statements as to the location of his unit and the type of duties performed are competent lay evidence of what the Veteran observed during his period of service in Korea. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. As there is no evidence of record that contradicts the Veteran's claim as to the location of his unit, they must be presumed to be accurate. Any reasonable doubt regarding the accuracy of the Veteran's statements is resolved in favor of the Veteran. See 38 C.F.R. § 5107(b). Accordingly, applying the doctrine of reasonable doubt, presumptive service connection is warranted for prostate cancer. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for prostate cancer, due to herbicide exposure is granted. ____________________________________________ WILLIAM YATES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs