Citation Nr: 1752501 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-06 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from May 1973 to January 1997. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, the Veteran was exposed to herbicide agents during his active service. 2. During the relevant appeal period, the Veteran was diagnosed with and received treatment for prostate cancer, which is presumed to be related to his exposure to herbicides during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). In this decision, the Board grants entitlement to service connection for prostate cancer. This represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance with the notification and assistance requirements is deemed to be harmless error, and further discussion of VA's compliance with those duties is not necessary. See Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Criteria Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain diseases may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even though there is no evidence of such disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Generally, the regulation applies where a disease listed in 38 C.F.R. § 3.309(e), to include prostate cancer, becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307(a)(6)(ii). Analysis The Veteran contends that he was exposed to herbicide agents while serving on Johnston Island, and that he developed prostate cancer as a result of that exposure. Specifically, he asserts that he had a military occupational specialty of chemical operations specialist while stationed on Johnston Island and that his duties included responding to leakages around an area where herbicide agents were stored. In addition, he passed near the storage site every day on his way to work. He has reported that he never went into the storage site, but that some of the barrels of herbicide agents were noticeably leaking when he cleaned around the site. See August 2017 Board hearing transcript. The medical treatment evidence of record shows that the Veteran was found to have an elevated PSA level in early 2009. He was eventually diagnosed with prostate cancer, and underwent a laparoscopic prostatectomy and bilateral pelvic lymphadenectomy in September 2009. He continues to have residuals of the prostate cancer and prostatectomy, to include voiding dysfunction. See VA Form 21-4138, Statement in Support of Claim, received in received in August 2010. Accordingly, the record shows that the Veteran had prostate cancer during the relevant appeal period and continues to have residuals of that condition. Therefore, the question remaining for consideration is whether the Veteran's prostate cancer is related to his active service, to include on a presumptive basis as due to in-service exposure to herbicide agents. There are no provisions in the relevant statues or regulations allowing for a presumption of exposure to herbicide agents for Veterans who served on Johnston Island. However, the United States Department of Defense has confirmed that herbicide agents were stored on Johnston Island between April 1972 and September 1977. See VA Adjudication Procedure Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H, Subsection 6, Paragraph a. In addition, exposure to herbicide agents during service on Johnston Island may be found based on the facts presented. See id. In this case, the Veteran's service personnel records confirm that he had service on Johnston Island from May 1974 to April 1975. His principal duty during that time was "decontamination equipment helper" and his duty position title was decontamination specialist. His DD Form 214 lists a similar primary specialty. A DA Form 2166-4, Enlisted Efficiency Report, dated in February 1975 indicates that the Veteran received high marks in all characteristics and notes that the Veteran "performed the tasks presented to him in an outstanding manner" and had "a vast knowledge of decontamination". Accordingly, the record confirms that the Veteran had service on Johnston Island during the period herbicide agents are known to have been stored there, and that the Veteran had an occupational specialty that would involve the type of chemical cleanup operations he has described. The February 1975 Enlisted Efficiency Report further indicates that the Veteran was a diligent worker who performed well in his core duties as a decontamination specialist. As such, the Board finds no basis in the record to question the Veteran's credibility regarding his reports of having responded to leakages around the area where herbicide agents were stored on Johnston Island and that he would pass near the storage site on his way to work. See 38 U.S.C. § 1154(a). The Board therefore finds that Veteran's statements to be competent and credible evidence that he was exposed to herbicide agents while serving on Johnston Island. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and which is within the realm of his personal knowledge); also see Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran). The Board acknowledges that the RO asked the Joint Services Records Research Center (JSRRC) to confirm whether the Veteran was exposed to herbicide agents, and that the JSRRC indicated that it was not able to verify or document that the Veteran was exposed to Agent Orange or other tactical herbicides at Johnston Island. However, the JSRRC's response was based on a review of unit records and general research performed in coordination with the U.S. Army Center for Military History. It neither confirms nor controverts the Veteran's assertions. Rather, it merely indicates that there is no record that the Veteran in particular was exposed to herbicide agents. As such, the JSRRC's response does not render the Veteran's statements not credible or weigh against the probative value of the Veteran's statements. In summary, the Veteran's statements, taken in conjunction with the information regarding the known storage of herbicide agents on Johnston island and the information contained in the Veteran's service personnel records supports a finding that the Veteran was exposed to herbicide agents during his active service. The Veteran's post-service medical records reflect a diagnosis of prostate cancer manifested to a compensable degree. See 38 C.F.R. § 4.115b, Diagnostic Code 7528. Therefore, service connection for prostate cancer is warranted on a presumptive basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309. ORDER Entitlement to service connection for prostate cancer is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs