Citation Nr: 1301727 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-29 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a prostate disorder, to include prostate cancer, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In March 2011, a hearing was held at the RO before a Decision Review Officer (DRO). A transcript of that hearing has been associated with the claims file. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In this regard, the Veteran initially characterized his claim on appeal as entitlement to service connection for prostate cancer; however, the record shows an additional diagnosis of prostatitis. Thus, the Board has generally characterized the issue as a claim for entitlement to service connection for a prostate disorder, to include prostate cancer. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). At the outset, the record reflects a current diagnosis of a prostate disorder, to include prostatitis and prostate cancer. The Veteran alleges that such disorder/disease is attributable to his active service, to include exposure to herbicides. Certain diseases may be service connected on a presumptive basis as due to herbicide exposure if manifested in a Veteran who served in the Republic of Vietnam during the Vietnam Era (January 9, 1962 to May 7, 1975), due to presumptive exposure to certain herbicide agents. 38 U.S.C.A. § 1116. Those diseases are listed in 38 C.F.R. § 3.309(e); notably, prostate cancer is an enumerated disease in 38 C.F.R. § 3.309(e). The Veteran has stated that he was exposed to herbicides in both Vietnam and Korea while serving along the demilitarized zone (DMZ). The RO has denied the Veteran's claim based on the fact that there is no verification of him having ever served in Vietnam and he did not serve in Korea during the accepted presumptive period. In this regard, the Board notes that the Veteran's service personnel records do not reflect Vietnam service. The Board notes, however, the Veteran did have service in Korea from May 1970 until June 1971. Prior to February 24, 2011, VA did not have any statutory or regulatory criteria governing herbicide exposure for Korean Veterans. However, VA had received from the Department of Defense (DoD) a listing of locations outside of Vietnam where tactical herbicides were used or tested over a number of years. In this regard, the DoD confirmed that tactical herbicides were used along the DMZ in Korea from April 1968 to July 1969. When it was determined that a Veteran who served in Korea from April 1968 to July 1969 belonged to one of the units identified by DoD, then it could be presumed that he or she was exposed to herbicides, and the presumptions outlined in 38 C.F.R. § 3.309(e) were applied. See VA Adjudication Procedure Manual, M21-1 MR, Part IV, subpt ii, ch. 2, sec. C.10 (in effect prior to September 15, 2011). Additionally, when a Veteran alleged service along the DMZ between April 1968 and July 1969, but his unit is not one listed as presumptively exposed, VA was to submit a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of the location of the Veteran's unit. Id. Effective February 24, 2011, VA amended its regulations to create a presumption of herbicide exposure for specified Korean Veterans as follows: A Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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 C.F.R. § 3.307(a)(6)(iv) (in effect since February 14, 2011). This amendment is effective for all claims received by VA on or after February 24, 2011, and to claims pending before VA on that date, which includes the current appeal. In September 2011, VA revised its M21-1 MR provisions to reflect the amended 38 C.F.R. § 3.307(a)(6)(iv). In so doing, VA kept the list of units or other military entities that DoD identified as operating in or near the Korean DMZ during the qualifying time period. M21-1 MR, Part IV, subpt ii, ch. 2, sec. C.10 (change in effect since September 15, 2011). The Veteran's service personnel records reflect that, while in Korea, he was assigned to Company A 2nd Aviation Battalion, 2nd Infantry Division, and 3rd Battalion 81st Artillery. The Veteran's principal duty was a field wireman. In various statements, to include his testimony presented at the March 2011 DRO hearing, the Veteran indicated that his office was right next to where Agent Orange drums were stored; the 2nd Aviation Battalion that he was assigned to often flew support for several other units in the Division along the DMZ and that they landed in herbicide treated landing areas; and, that his unit would stay one to two weeks at a time in the applied areas along the DMZ. See December 2008 statement, and an undated statement to the Veteran's United States Senator. As noted, VA has developed specific evidentiary procedures to verify whether a Veteran was exposed to herbicides in locations other than Vietnam, and specifically when there is an allegation of exposure to herbicides in Korea, to include along the DMZ, or otherwise during the course of their military duties. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.p,o. Review of that section reveals that the Veteran's unit is not listed among those that were determined by the DoD to have served along the DMZ from April 1968 to August 1971 (when herbicides were used). Therefore, to substantiate his claim the evidence must affirmatively show that he served in or near the DMZ during a period contemporaneous with defoliant spraying or was otherwise exposed to herbicides during his military service. As the Veteran alleges service in the DMZ during that date range and was assigned to a unit not listed, and has claimed direct exposure to herbicides in that his unit was responsible for storing them in Korea, the agency of original jurisdiction (AOJ) should send a request to verify such alleged exposure to JRSSC. The Board further finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine whether his current prostate disorder is directly related to his military service. In this regard, as noted above, a prostate disorder/cancer has been diagnosed. The Veteran raised a theory of direct service connection in a statement associated with his August 2009 substantive appeal. Specifically, he stated that he had attached a medical record document from Chief Medical Services dated August 9, 1972 which shows continued prostate problems while in service. The attached August 1972 photocopy documents the Veteran's history of chronic prostatitis. The Veteran's original service treatment records include a March 1972 record which documents the Veteran's complaint and subsequent treatment for prostatitis. Moreover, post-service VA treatment records, include a May 2008 record that documents prostatitis. Therefore, the evidence presently of record is sufficient to trigger VA's duty to provide an examination for his prostate cancer/disorder claim. See 38 C.F.R. § 3.326; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following: 1. The AOJ shall comply with the evidentiary development noted in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o)&(p). Specifically, the AOJ should contact the VA Compensation Service to request a review of DOD's inventory of herbicide operations based on the information in the Veteran's service personnel records, and in his statements and hearing testimony regarding his alleged herbicide exposure in Korea. Following this action, if herbicide exposure to the Veteran is not verified, the AOJ should then ask the JSRRC for verification as to whether the Veteran was exposed to herbicides as alleged during his period of service in Korea. Once again, the Veteran's service personnel records, and a summary of the Veteran's allegations regarding herbicide exposure in Korea, to include the DMZ, must be provided for review. All requests and responses received should be associated with the claims file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the verification conducted). 2. Schedule the Veteran for an appropriate VA for the purpose of determining the nature and etiology of any prostate cancer/disorder found to be present. The claims folder must be made available to and reviewed by the examiner. The examiner should identify all prostate disorders found to be present, to include prostatitis and prostate cancer. Thereafter, he or she should offer an opinion as to whether each currently diagnosed prostate disorder is at least as likely as not (i.e., probability of 50 percent or greater) related to the Veteran's active service, to include the prostatitis noted therein. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of his prostate disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).