Citation Nr: 20002302 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 18-48 952 DATE: January 14, 2020 REMANDED Entitlement to service connection for prostate cancer as due to herbicide agent exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1968 to December 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2019. A transcript of the hearing is associated with the electronic claims file. 1. Entitlement to service connection for prostate cancer as due to herbicide agent exposure is remanded. The Veteran contends that he was exposed to the herbicide, Agent Orange, while he was stationed in Korea. VA regulations currently provide that certain diseases associated with exposure to herbicide agents, including prostate cancer, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. See 38 C.F.R. § 3.309(e). 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 (DoD), operated in or near the Korean Demilitarized Zone (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 a veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). The units or other military entities that the DoD has identified as operating in or near the Korean DMZ during the qualifying time period are listed in a table. During the course of this appeal, the Blue Water Navy Vietnam Veterans Act of 2019 was enacted. As relevant, the Act creates new statutory requirements for the adjudications of certain claims based on Veterans’ herbicide agent exposure in or near the DMZ during the period from September 1, 1967, to August 31, 1971. In the present case, the Veteran testified, and his personnel records confirm that he was stationed in Korea as part of the Army Corps of Engineers as a Uijeongbu resident engineer from November 1968 to December 1969. The record also contains several letters of appreciation for the Veteran’s service in the area, including from the GS-13 Uijeonbu Resident Engineer, the Far East District, Corps of Engineers, Construction Division Chief, and the Lieutenant Colonel of the Seoul Area Engineers. Moreover, the Veteran has provided photos and additional evidence as proof he worked at or near the DMZ. Specifically, the Veteran provided an article, from which an excerpt reads “In the meantime, on 5 October 1968, the district signed a $117,000 contract with MWK International Ltd. Inc. and Kuk Dong Constr. Co. Ltd. for housing at G-7 (north of the Imjin River near the DMZ). Army Engineer troops did much of the site work, and the Morrison-Knudsen, Dae Lim, and Han Yang combination provided utilities. In addition, Engineer troops also relocated buildings in Yongsan and at three I Corps sites.” At his October 2019 hearing, the Veteran testified that he worked on the barrack construction of the facility called G7 and that such construction site, among others, was cleared with the use of herbicide agents. He further testified that although he was part of the Uijeongbu Resident Engineer’s office, “the compounds that we went to, from my knowledge, were the 2nd Infantry Division and the 7th Infantry Division.” The Veteran’s unit is not among those listed by the DoD as definitely stations along the DMZ in or near an area in which herbicides are known to have been applied during that period. However, as noted above, the Veteran has provided additional evidence in support of his claim that as an engineer he travelled to and worked on several different projects around the DMZ. When a Veteran claims exposure in Korea, and his or her service was either not during the qualifying period, or not in a unit or entity listed in the table, VA is to send a request to the U.S. Army and Joint Service Records Research Center (JSRRC) for verification of exposure to herbicides. Prior to sending a request to JSRRC, the AOJ is required to request and review all available military records. Additionally, if the claim and available records do not provide sufficient details of the Veteran’s Korean DMZ service, the AOJ is required to send a subsequent development letter to the Veteran and allow 30 days for a response. The Veteran provided some 33 pages of additional evidence in support of his claim, including photographs and pages from “History of the United States Army Engineer District Far East” in August 2019. There is no indication this information was relayed to JSRRC. On remand, the AOJ must ensure that the Veteran’s complete personnel file is made part of the electronic record and attempt to verify his service near the DMZ. The appeal should be reviewed in light of the Blue Water Navy Vietnam Veterans Act of 2019. The matters are REMANDED for the following action: 1. The appeal should be reviewed in light of the Blue Water Navy Vietnam Veterans Act of 2019. 2. Contact the National Personnel Records Center (NPRC), or any other appropriate service department organization, to obtain the Veteran’s entire Official Military Personnel File (OMPF), including all records of his assignments, whether permanent or temporary duty stations; all travel orders; pay stubs that reflect special pay status, travel vouchers, and all TDY orders from November 1968 to December 1969 to attempt to verify the Veteran’s contentions of travelling to and working in locations along the DMZ. 3. Thereafter, request that the U.S. Army and Joint Services Records Research Center (JSRRC), or other official source, investigate and attempt to verify the Veteran’s alleged exposure to herbicides during his service in Korea (breaking the requests into multiple periods as required by JSRRC policy). The Veteran’s October 2019 testimony and August 2019 exhibits A through D should be fully outlined and considered. If more detailed information is needed for this research, the Veteran should be given an opportunity to provide it. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate 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.