Citation Nr: 1332861 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 05-08 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of prostate cancer, to include as due to inservice herbicide exposure. REPRESENTATION Appellant represented by: Michael Eisenberg, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1969, to include service in Okinawa, Japan from January 1967 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in September 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was remanded to the RO by the Board on multiple prior occasions, the most recent of which was accomplished in April 2010 so that further attempts to verify the Veteran's claimed inservice herbicide exposure could be undertaken. Following the RO's completion of the requested actions and its further denial of the benefit sought, the case was returned to the Board for entry of a final administrative decision. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran while serving on active duty in Okinawa as a motor vehicle operator was exposed to toxic herbicide, including Agent Orange. 2. Many years after service, the Veteran was diagnosed as having prostatic adenocarcinoma and treated therefor. 3. The Veteran's prostate cancer is presumed to have been incurred in service as a result of herbicide exposure; that presumption is not adequately rebutted. CONCLUSION OF LAW Residuals of prostate cancer are presumed to have been incurred in service as a result of toxic herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to service connection for residuals of prostate cancer as due to herbicide exposure, which represents a complete grant of the Veteran's claim. Therefore, no discussion of the VA's duty to notify or assist is necessary. Applicable law provides that service connection will be granted if it is shown that the appellant suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including a malignant tumor, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection also may be granted for any disease initially 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). In addition to the forgoing, the Board observes that if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. The diseases associated with herbicide exposure for purposes of the presumption are specified by statute and regulation and include prostate cancer. 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the 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); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom; Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); see Brock v. Brown, 10 Vet. App. 155, 160-61 (1997) (specific applicability in Agent Orange cases). Thus, presumption is not the sole method for showing causation. The record documents the existence of the Veteran's prostate cancer, first diagnosed many years postservice and followed by non-surgical treatment involving radiation. It is neither alleged nor shown that the Veteran's prostate cancer originated in service or that a malignant tumor of his prostate was present within the one-year period immediately following service separation. Rather, the Veteran alleges that his prostate cancer is the result of his inservice herbicide exposure while he was serving on active duty in Okinawa, Japan, during 1967 and early 1968. The single question thus presented by the instant appeal is whether the Veteran was in fact exposed to toxic herbicide, including Agent Orange, while in service. The Board notes parenthetically that the Veteran did not serve on active duty in Vietnam or Korea, such that he might be afforded a presumption of inservice herbicide exposure. See 38 C.F.R. § 3.307(a)(6)(iii). He alleges that he encountered Agent Orange when leaking barrels and rubber bladders were transported by him by truck from ships at White Beach or the port at Naha to and from a warehouse at Kadena Air Force Base, noting that the barrels were identifiable as Agent Orange based on an encircling orange band. He also reports that he and other members of his squad of Marines were ordered to mix and spray the herbicide around various areas in the Northern Training Area in Okinawa, where there was a guerilla warfare school, in order to eliminate any undergrowth and diminish fire potential. The foregoing was set forth in sworn testimony offered at hearings before the RO and Board and is found to be competent, probative, and persuasive. In support of his inservice exposure, he points to a similarly situated Veteran who like himself served in Okinawa in or about 1962 and later developed prostate cancer and, in that case, the Board granted entitlement to service connection for prostatic cancer on the basis of credible evidence sustaining a reasonable probability that the service person was exposed to dioxins while serving in Okinawa and that his prostate cancer was reasonably attributable to his inservice dioxin exposure. See BVA Docket No. 97-05 078 (Jan. 13, 1998). Other past Board decisions are also cited. The Board's prior decisions are not precedential. 38 C.F.R. § 20.1303. The decisions of the Board must be based on the particular facts and applicable legal authority specific to the case before it. In addition, the Veteran has submitted memoranda from the U.S. Air Force regarding use of herbicides and other chemicals for pest control on Okinawa during the 1960s. A variety of other articles, be they newspaper related or of internet origin, relating to the use of Agent Orange on Okinawa, are also of record. Also submitted are various photos of the Veteran and others at his duty station in Okinawa and one or more of the vehicles he utilized in transporting barrels and bladders of herbicide. Referral of this case has also been made to the U.S. Army and Joint Services Records Research Center (USAJSRRC) in an effort to corroborate the Veteran's exposure to Agent Orange. That referral was prompted by the VA's Compensation and Pension Service, and in response, the USAJSSRC indicated that it had discontinued all Agent Orange research on behalf of Marine veterans when not assigned to U.S. Navy units or ships and RO personnel were referred to the National Archives and Records Administration (NARA). The USAJSRRC otherwise indicated that the Department of Defense (DOD) listing of Agent Orange sites for testing, spraying, storage, or disposal did not include Okinawa. Subsequent contact by the RO with NARA and the Navy and Marines Public Health Center disclosed a history for the Veteran's unit in Okinawa, but without evidence either confirming or disputing his exposure to Agent Orange. Many efforts have been made by the RO and AMC to verify the Veteran's account since he initiated his claim for service connection for prostate cancer approximately ten years ago, all of which have been unsuccessful. Thus, a decision must be reached on the basis of the evidence developed to date and, on balance, this matter turns on the credibility and probative value of the Veteran's testimony and statements regarding his inservice exposure to Agent Orange. While neither the service department nor DOD confirms the presence of Agent Orange on Okinawa during 1967 and 1968, the Veteran offers a highly credible, consistent account that he was directly exposed thereto during those years while performing his assigned military duties. Because his testimony is highly probative, the record as a whole is at least in relative equipoise as to the occurrence of inservice Agent Orange exposure and on that basis, the Board concedes that the claimed exposure occurred and, thus, his prostate cancer is presumed to be related thereto. Given that such presumption is not adequately rebutted by evidence to the contrary, service connection for prostate cancer due to Agent Orange exposure is granted. ORDER Service connection for residuals of prostate cancer due to herbicide exposure is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs