Citation Nr: 18154996 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-50 184 DATE: December 4, 2018 ORDER Entitlement to service connection for prostate cancer, to include as due to Agent Orange (AO) exposure is denied. FINDING OF FACT The Veteran’s prostate cancer was not manifested in service or within one year of separation and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer, to include as due to Agent Orange exposure have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5013, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army from March 1970 to October 1971. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Prostate cancer is a listed chronic condition. If a Veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the Veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). Prostate cancer is a listed condition. Exposure is presumed for Veterans who served in Vietnam, or in Korea along the DMZ between certain dates; the Veteran served in Korea. 38 C.F.R. § 3.307. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A current diagnosis of prostate cancer is established, as of 2014. The Veteran does not contend, and the evidence does not show, that the condition began in service or within the first post-service year. The Veteran’s service treatment records (STRs), for example, are silent of any reported symptoms or treatment for prostate cancer, and VA records show biopsy and diagnosis in mid-2014. Neither direct service connection nor presumptive service connection as a chronic disease are warranted. Instead, the Veteran’s sole contention is that he is entitled to service connection for prostate cancer as a result of in-service herbicide exposure in Korea. The Veteran contends while stationed in Korea with an artillery unit would be flown to forward positions for exercises of multiple days, and was exposed there. Records reflect that he was a rocket crewman with the A Battery,1/42 Artillery, 4th Missile Command, Eighth Army. He was stationed at Camp Page, which was located near Chunchon, South Korea, about 20 miles from the DMZ. His allegation is, on its face, consistent with the circumstances of his service. However, in response to a March 2015 inquiry, the Joint Services Records Research Command (JSRRC) certified that unit histories showed that for the period the Veteran was present in Korea, 1st Bn, 42nd Arty did not perform duties on or near the DMZ. These official records outweigh the Veteran’s lay allegations. Herbicide exposure cannot therefore be presumed. The Veteran has not made an allegation of actual exposure, nor is there evidence of such, and so herbicide exposure is not established. In the absence of such, presumptive service connection based on herbicide exposure is not warranted. In sum, there is no basis on which to establish a nexus between currently diagnosed prostate cancer and service. Service connection must be denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Baxter, Associate Counsel