Citation Nr: 1751360 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-36 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for malignant neoplasm of the prostate (prostate cancer) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Natasha N. Pendleton, Associate Counsel INTRODUCTION The Veteran served on active duty for the U.S. Army from February 1971 to September 1972. The matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing in November 2016. A copy of the hearing transcript is of record. The Board notes that the Veteran, by and through his representative, withdrew his claim for an increased rating for hearing loss. As such, that matter is not Before the Board for consideration. See 38 C.F.R. § 20.200-02. The following discussion solely focuses on the claim at issue. FINDINGS OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran is presumed to have been exposed to herbicide agents in-service while stationed at Camp Stanley, Korean along the demilitarized zone (DMZ). Prostate cancer is presumptively related to in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for presumptive service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he was exposed to herbicide agents during his military service through several means. At the hearing, he testified he served as the colonel's driver, regularly driving through the Korean DMZ to perform drills and to scope out locations. He also testified his job responsibilities required him to walk perimeter fences to manage patrol guards. His MOS changed to "communications" during that time as his job responsibilities required him to man the radio on behalf of his colonel to send orders to headquarters. Most importantly, his asserts his herbicide agent exposure is the cause of his prostate cancer. Agent Orange, classified as an "herbicide agent," was used along the southern boundary of the DMZ in Korea. Department of Defense has also identified specific military units that were assigned or rotated to areas along the DMZ where Agent Orange was used. If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, or in a unit identified by the DOD that operated in or near the Korean DMZ between April 1, 1969 and August 31, 1971, then, absent affirmative evidence to the contrary, certain diseases, including prostate cancer, will be presumptively service connected even if there is no record of the disease in service. 38 U.S.C.A. §§ 1110, 1116; 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). The Veteran was diagnosed with prostate cancer in June 2012. (See August 2012 CAPRI Medical Records, Legacy Documents p. 13). Id. He was found to have a prostate nodule in his right lobe during a routine examination. CT scans of his pelvis returned abnormal, indicating moderate prostatic enlargement. Id. at 12. The Veteran underwent a prostate biopsy, which showed Gleason 9 CAP, a more aggressive form of prostate cancer. Id. at 10. In a November 2016 letter, his physician opined that his prostate cancer was likely brought on or effected by his exposure to herbicide agents while stationed in Korea along the DMZ for three reasons: (1) he has a more aggressive form of the cancer, (2) he is young in age to be diagnosed with prostate cancer of any type, and (3) does not have any other typical risk factors, such as family history, African-American race, smoking or other chemical exposures or history of sexually transmitted diseases. She cited a 2013 study conducted by the Portland VA Medical Center and Oregon Health and Science University in further support which found Veterans exposed to Agent Orange were not only at high risk for prostate cancer, but are more likely to have aggressive forms of the disease. She also discussed that the Veteran has ongoing complications post-surgery and when examining photos taken of the Veteran while stationed in Korea, he appeared to have chloracne lesions, typically associated with Agent Orange exposure. After considering the evidence of record, the Board resolves reasonable doubt and finds that the Veteran was likely exposed to herbicide agents during service in Korea along the DMZ. Service records confirm that he was in one of the units identified by the DOD to have participated in the DMZ within the presumptive period. Specifically, a copy of the Veteran's DD 214 confirms he was stationed in Korea as a part of the 1st battalion, 31st field artillery; a unit on the statutory list. (See December 2013 and December 2016 Certificate of Release or Discharge from Active Duty DD 214; see also a Certificate of Achievement in November 2016 Military Personnel Records (1)). Service records indicate he served active duty within the presumptive period; from February 22, 1971 to September 30, 1972. Id. The Veteran also submitted a letter from his Major General welcoming him to the 2nd Infantry Division, indicating the division returned to Korea in 1965 and remained there at the time of receipt of the letter as the only American Division in the demilitarized zone. (See November 2016 Military Personnel Records (1) and (2)). Most importantly, the Veteran's lay statements and contentions have remained consistent throughout the pendency of the appeal. The Veteran is capable and permitted to describe his in-service experiences, to include testimony that he regularly drove a jeep through the DMZ with his colonel to scope out locations and to run drills. He is also permitted to testify to his job responsibilities walking the perimeter of the base to manage the patrol guards on behalf of his colonel. His service records support his testimony in that he received a certificate of achievement for performing that position, signed by his Major General. (See November 2016 Military Personnel Records (1)). While there is not a detailed log of his job responsibilities, military personnel records corroborate the Veteran's testimony that he had various military occupational statuses during this 14-month tour of duty. (See September 2012 Military Personnel Records). Despite the JSRRC being unable to confirm his exposure to herbicide agents, as per §3.307(a)(6)(iii), the Veteran is presumed to have been exposed to herbicide agents per his credible testimony, constituent with his military service records, and the favorable medical opinion from his treating provider. Because he developed prostate cancer, in the absence of any evidence to the contrary, it is presumed to be associated with his exposure to herbicide agents in service. The evidence is at least in equipoise. As such, service connection is granted. ORDER Entitlement to service connection for prostate cancer due to herbicide agent exposure is granted. ____________________________________________ MATTHEW TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs