Citation Nr: 19143003
Decision Date: 06/04/19	Archive Date: 06/04/19

DOCKET NO. 18-18 782A
DATE:	June 4, 2019

REMANDED

Entitlement to service connection for prostate cancer as due to in-service herbicide agent exposure is remanded.

REASONS FOR REMAND

The Veteran had active duty service from February 1971 to July 1977, and from June 1979 up until his separation and retirement in January 1997.

In March 2019, the Veteran’s representative provided evidence without waiver of consideration by the Agency of Original Jurisdiction (AOJ), consisting of an article on the probability Agent Orange was stored in Okinawa; and physician’s letter that the Veteran’s prostate cancer was likely due to Agent Orange exposure, the latter fact set forth within the stated background history.   The AOJ will have the opportunity to review the evidence pursuant to this remand.

1. Entitlement to service connection for prostate cancer as due to in-service Agent Orange exposure is remanded.

The Veteran avers he had exposure to Agent Orange while serving in Okinawa in the early-1970s.   

The alleged herbicide agent exposure is not based on service within the territorial borders of Vietnam, or territorial waters (per application of recent legal precedent set forth in Procopio v. Wilkie, 913 F.3d 1371, 1376 (2019)) to warrant an automatic presumption of exposure to herbicide agents.  38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2018).  Instead the underlying fact of exposure to herbicide agents must be shown on a facts found basis.  

The Veteran sets forth that he and others sprayed Agent Orange over radio antennae fields for maintenance at the Naval base in Hanza, Okinawa.   

On VA’s inquiry with military records agencies, the finding was that Agent Orange is not documented to have been used in Okinawa.  Records for the Veteran’s unit were not available.  Further, the usage of Agent Orange officially ceased January 1971, about one year before claimed exposure.   

However, the Veteran through his representative claims that some storage containers of Agent Orange were in transit to be disposed ending up with his unit.  He cites documentation of herbicide usage in Okinawa. 

To ensure the opportunity for evidentiary development, a records inquiry should be completed to check into whether the above as described on base had occurred. 

The matter is REMANDED for the following action:

1. Contact the Joint Service Records Research Center (JSRRC) and request corroboration whether there were at any point from 1971 onwards, herbicide agents stored, utilized, kept in transit or otherwise disposed of at the Naval Security Group Hanza, Okinawa base –– and specifically, at the radio antennae tower complex and field as part of the U.S. SIGINT activities in Japan.  Sequential requests must be made to cover the full time period asserted by the Veteran.  All negative responses must be documented. 

2. Then, readjudicate the remaining claim on appeal in light of all additional evidence received.  If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

 

D. Martz Ames

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	Jason A. Lyons, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.