Citation Nr: 1513801 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 09-30 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for residuals of prostate cancer, claimed as due to in-service exposure to herbicides. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In November 2011, the Veteran testified at a Board hearing before a Veterans Law Judge who has since retired. A transcript of that hearing is of record. In March 2013, the Veteran declined the opportunity to testify at another hearing. In March 2012, the Board remanded the Veteran's claim for additional development to verify his claims of being exposed to herbicides, including Agent Orange, along the demilitarized zone (DMZ) in Korea. The Board finds that there has been substantial compliance with its remand directives, and that the Board's duty to assist has been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The evidence of record shows that the Veteran served in Korea from February 16, 1968 to February 13, 1969, and was assigned to HQ & CoA, 55th Maint Bn (Maintenance Battalion), located at Camp Humphreys. 2. Affording the Veteran the benefit of the doubt, his prostate cancer is presumed to be related to exposure to herbicide agents while serving in Korea. CONCLUSION OF LAW The criteria for service connection for residuals of prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, as the Board is granting the benefit sought in its entirety, there is no further need to discuss VA's efforts to comply with the duties to notify and assist. The Veteran seeks to establish service connection for prostate cancer on a presumptive basis due to his alleged exposure to herbicides in Korea. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). With regard to disabilities a Veteran attributes to exposure to herbicides, for Veterans who served in the Republic of Vietnam from January 9, 1962, to May 7, 1975, service connection may be presumed for certain listed diseases, such as prostate cancer, that become manifest within a particular period after service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A Veteran who 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 that service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). The Veteran's military occupational specialty (MOS) was as an armorer. In his correspondence and hearing testimony, the Veteran reported that while he was in Korea, he was stationed at Camp Humphreys. The Veteran stated that the camp perimeters were sprayed with herbicides. He also noted that there was an Air Force unit on base and that the runway was sprayed with herbicides. In addition, the Veteran indicated that on at least two occasions, he was given assignments to deliver weapons to the DMZ where he was exposed to Agent Orange. According to the Veteran, he was further exposed to Agent Orange when he visited Camp Casey which was close to the DMZ and was where the 7th Inf Div (Infantry Division) was located. The Veteran's service records show that he served in Korea from February 16, 1968 to February 13, 1969, and was assigned to HQ & CoA, 55th Maint Bn. The Board notes that the Veteran's unit has not been recognized by the Department of Defense as operating in or near the Korean DMZ during the qualifying time period for exposure to herbicide agents. See VA Adjudication Manual M21-1MR, Part IV, Subpart ii, Ch. 2, Sec. C.10. A Defense Personnel Records Information Retrieval System (DPRIS) document shows that the Veteran's unit (55th Maintenance Battalion) was located at Camp Humphreys, Korea, approximately 14 miles from the DMZ. Headquarters and Company A provided direct support vehicular maintenance and supply services to all units within the U.S. Army Humphreys District. However, the histories do not document the use, storage, spraying or transportation of herbicides. Moreover, the history of the Veteran's unit did not mention or document any specific duties performed by the unit members along the DMZ. An April 2012 Appeals Management Center (AMC) Memorandum reflects that a determination has been made that the Veteran's claims of Agent Orange exposure were unable to be positively verified or refuted. The memorandum notes that a request was placed to the JSRRC in March 2012. However, the response did not verify that herbicides were used at Camp Humphrey. The Veteran's occasional trips to the DMZ as a maintenance person could not be verified or refuted. The memorandum concluded that applying the benefit of the doubt on behalf of the Veteran, his claimed Agent Orange exposure was corroborated. The Board finds that the evidence of records shows that the Veteran served in Korea from February 1968 to February 1969, a period in which the Department of Defense has confirmed that Agent Orange was deploy in Korea near the DMZ. The Veteran had an MOS of armorer and was stationed at Camp Humprey, a base located 14 miles away from the DMZ. The Board finds the Veteran credible with respect to his assertions of having traveled to the DMZ to assist the unit armorer with loading and unloading equipment, as well as assisting with the repair of weapons. See November 2012 Statement in Support of Claim. Further, the Veteran's MOS is consistent with the duties and circumstances he described during service. The Veteran's claims file includes an April 2012 Memorandum from the JSRRC coordinator in which it was determined that the Veteran's Agent Orange exposure was corroborated. Therefore, affording the benefit of the doubt to the Veteran, exposure to herbicide agents during service is conceded. The medical evidence of record clearly shows the Veteran underwent a radical prostatectomy in August 2007 due to a diagnosis of prostate cancer, and that he now suffers residuals of erectile dysfunction. See November 2012 prostate cancer Disability Benefits Questionnaire. The Board therefore finds the Veteran's prostate cancer is a diseases associated with exposure to herbicides and the Veteran receives a presumption of service connection due to exposure to herbicides during service in Korea. 38 C.F.R. § 3.309(e). Accordingly, the Board finds that presumptive service connection for prostate cancer is warranted based on exposure to herbicides during service. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. ORDER Service connection for residuals of prostate cancer is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs