Citation Nr: 20043662 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 14-40 278 DATE: June 29, 2020 ORDER Service connection for prostate cancer, to include as secondary to herbicide exposure, is granted. FINDINGS OF FACT 1. The Veteran was exposed to herbicides while stationed at Fort Chaffee in Arkansas during active duty for training. 2. The Veteran has a diagnosis of prostate cancer. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 101, 1110, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Louisiana National Guard. He had active service from March 1967 to July 1967. He also had several verified periods of Active Duty for Training (ACDTURA) that will be discussed in further detail below. In March 2018, the Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge and provided testimony regarding his appeal. A transcript is in the record. This matter was previously before the Board in June 2018 when it was remanded for additional development. It has now been returned for further appellate consideration. Entitlement to service connection for prostate cancer, to include as secondary to herbicide exposure The Veteran contends that his prostate cancer developed due to exposure to herbicides such as Agent Orange during summer drills at Fort Chaffee, Arkansas. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(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”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The term “active military, naval, or air service” is defined to include active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); see also 38 C.F.R. § 3.6(a). ACDUTRA includes full time duty in the Armed Forces performed by members of the Reserves for training purposes, such as annual training (as opposed to weekend drills). 38 U.S.C. § 101(22); see also 38 C.F.R. § 3.6(c). Prostate cancer is among the diseases that VA deems associated with herbicide agent exposure. Hence, where a veteran’s exposure to an herbicide agent is shown, a subsequent diagnosis of prostate cancer at any time thereafter is presumed to be due to that exposure. 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). The Veteran did not serve in a geographical area where exposure to herbicide agents is presumed, such as the Republic of Vietnam or Korea. Instead, he seeks to show direct evidence that he was in fact exposed and, therefore is entitled to the presumptive association between his prostate cancer and his claimed exposure. See Combee v. Brown, 34 F.3d 1039, 1042-43 (Fed. Cir. 1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The medical evidence includes many confirmations that the Veteran has a current diagnosis of prostate cancer. The initial requirement for service connection of evidence of a current disability has been met. The Veteran asserts that he developed prostate cancer as the result of exposure to herbicides during periods of National Guard training at Fort Chafee, Arkansas in the summers of 1968, 1969, 1970, and 1971. His participation in this training is verified in his personnel records. The name of his unit is found in many locations in the claims folder. An April 2019 VA email notes the Department of Defense has provided information to VA that confirms Agent Orange testing occurred at Fort Chaffee during July to October 1967. The email adds that the testing occurred at a remote forested location of three acres that was not near any military base personnel. There was no other use, testing, or storage of Agent Orange at Fort Chaffee. A page from a VA website that lists the locations of where tactical herbicides were tested, used, and stored outside of Vietnam specifies that the testing at Fort Chaffee occurred from May 16-18; July 22-23; and August 23-25, 1967. As requested by the Board in the June 2018 remand, a request was made to the Joint Services Records Research Center (JSRRC) to attempt to determine whether it was as likely as not that the Veteran and/or his unit operated in an area contaminated by herbicides such as Agent Orange during one or more of his summer camps. In an October 2019 reply, JSRRC said they were unable to locate the records for the Veteran’s unit for any of the four summers the Veteran was at Fort Chaffee. A review of the claims folder confirms the JSRRC was provided with the correct name of the Veteran’s unit. It follows that JSRRC was unable to verify whether the Veteran or his unit operated in a contaminated area. At the Veteran’s March 2018 hearing, he testified that much of his training at Fort Chafee occurred outdoors in areas where the trees and foliage were dead. They camped there in tents, and some drills required them to crawl on their bellies through the dirt. The Board finds no reason to doubt the credibility of the Veteran in this regard. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board); see too 38 U.S.C. § 1154(a) (2012) (reflecting that due consideration is to be given to the places, types, and circumstances of a claimant’s service). Taken together, the Department of Defense verification of the use of tactical herbicides at Fort Chaffee from July to October 1967, as well as the Veteran’s testimony that his unit drilled outdoors in areas with dead trees and foliage, the evidence tends to support the conclusion that the Veteran was exposed to herbicides. Furthermore, there is no affirmative evidence to the contrary, and it should be noted that the unit records that may or may not place the Veteran within the contaminated area have not been located, which should not weigh against the Veteran. Therefore, the Board will resolve all doubt in favor of the Veteran on this material issue and find the evidence is at least in a state of equipoise as to whether the Veteran was exposed to herbicides during his summer training at Fort Chaffee. 38 U.S.C. § 5107(b).   In a March 2020 opinion, a VA examiner found it was at least as likely as not that the Veteran’s prostate cancer was incurred due to his herbicide exposure during service. Furthermore, and more importantly, prostate cancer is a condition for which service connection can be granted on a presumptive basis when exposure to herbicides is established. Therefore, entitlement to service connection for prostate cancer is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John L. Prichard 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.