Citation Nr: 19115337
Decision Date: 03/04/19	Archive Date: 03/01/19

DOCKET NO. 16-53 597A
DATE:	March 4, 2019

REMANDED

Entitlement to service connection for prostate cancer is remanded.

REASONS FOR REMAND

The Veteran served honorably from May 1976 to May 1996, with a period of service in the DMZ in Korea. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran service connection for prostate cancer. 

The Veteran contends that his current diagnosis of prostate cancer stems from exposure to Agent Orange while he was serving in the Korean DMZ. The Veteran contends that many studies prove that Agent Orange remains in the drinking water, in the food, and on the ground for many years following use of the chemical. He has submitted those studies to support his claim, and attributes his current diagnosis to some sort of exposure to the chemicals, either through direct contact or through food or water. 

The Code provides, “a veteran who, during  active  military,  naval,  or  air  service,  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  such  service  to  an  herbicide  agent,  unless  there  is  affirmative  evidence  to establish that the veteran was not exposed to any such agent during that service.” 38 C.F.R. 3.307(a)(6). 

The Veteran was not enlisted in the military until May 1976. Thus, he does not meet the presumption that he was exposed to Agent Orange, as he was not in the Korean DMZ during the specified time.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis, but the Board finds that a remand is necessary for an environmental expert to determine the likelihood that the Veteran was exposed to Agent Orange, and that said exposure is as likely as not the cause of the Veteran’s current prostate cancer diagnosis. There is no evidence to show the Veteran was exposed to the chemical Agent Orange, and the presumption does not apply. However, the Board seeks to determine the likelihood of exposure some years later in an opinion from an environmental expert.

The matter is REMANDED for the following action:

Obtain an opinion from an environmental toxicologist specializing in herbicides/Agent Orange and related chemicals to assess whether it is at least as likely as not that the Veteran was exposed to Agent Orange during service in the Korean DMZ. 



 

 M. H. Hawley

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	Drew Kelly, Associate Counsel