Citation Nr: 20045098 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 16-29 362 DATE: July 7, 2020 ORDER Entitlement to service connection for prostate cancer is granted. FINDING OF FACT The Veteran served in or near the Korean Demilitarized Zone (DMZ) between September 1, 1967 and August 31, 1971. CONCLUSION OF LAW The criteria for service connection for prostate cancer on a presumptive basis due to herbicide agent exposure are met. 38 U.S.C. §§ 1110, 1112, 1116B, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to January 1972, including service in Korea during the Vietnam Era. This matter comes before the Board of Veteran Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s claim for service connection for prostate cancer. In January 2014, the Veteran filed a notice of disagreement (NOD) as to his prostate cancer and was issued a statement of the case in May 2016. In June 2016 the Veteran filed a timely substantive appeal (via VA Form 9). Prostate Cancer Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). However, certain diseases specified in 38 U.S.C. § 1116(a)(2), and additional diseases the Secretary determines warrant a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, listed in 38 C.F.R. § 3.309(e), are considered to have been incurred in or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of such service. See 38 U.S.C. § 1116B(a)(1). This presumption applies to any veteran who, during active military, naval, or air service, served in or near the Korean Demilitarized Zone (DMZ), during the period beginning on September 1, 1967, and ending on August 31, 1971. See 38 U.S.C. § 1116B(a)(2). Medical records, including a January 2013 private treatment note, indicate that the Veteran was diagnosed with prostate cancer. Accordingly, the first element necessary to establish service connection has been demonstrated. Prostate cancer is a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e) and may therefore be considered incurred during service if the Veteran served in or near the DMZ between September 1, 1967, and August 31, 1971. Therefore, the remaining question is whether the Veteran was exposed to herbicide agents during service, entitling him to presumptive service connection for prostate cancer under 38 U.S.C. § 1116B. The Veteran's service personnel records show that, from December 1970 to June 1971, the Veteran was assigned to the 7th Battalion, 5th Artillery, and, from June 1971 to September 1971, he was assigned to the 2nd Battalion, 71st Artillery. A January 2020 Defense Personnel Records Information (DPRIS) response from the Joint Services Records Research Center (JSRRC) indicates that the Veteran’s assigned units did not document the use, storage, spraying, or transporting of tactical herbicides to include Agent Orange and did not perform any specific duties in or near the DMZ. As a result, the Veteran’s claim was denied because his assigned units are not among those listed by the Department of Defense (DOD) as definitely stationed along the DMZ in or near an area in which herbicides are known to have been applied during that period. While the Veteran’s appeal was pending, Congress enacted, and the President signed into law, the Blue Water Navy Vietnam Veterans Act of 2019. The new law codified VA’s regulation related to veterans who served in Korea in a new section of the U.S. Code 38 U.S.C. § 1116B, though with modifications. Notably, it contains no reference to units designated by DOD; it simply refers to veterans who “served in or near” the DMZ. Compare 38 C.F.R. § 3.307(a)(6)(iv), with Pub. L. No. 116-23, § 3(a), 133 Stat. 966, 969 (2019). In a December 2015 Statement in Support of Claim (VA Form 21-4138), the Veteran contends that while stationed overseas, he was responsible for driving personnel and supplies to various sites in the northern part of South Korea, including locations at the DMZ. This statement was corroborated by a letter from the Veteran’s commanding officer of the 2nd Battalion, 71st Artillery, dated August 9, 1971, which commended the Veteran for driving over 8,000 miles “under the hazardous conditions in the Republic of Korea.” Although there is no specific personnel record that contains a specific notation of presence in or near the DMZ, no such documentation is required in these circumstances. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). The evidence of record, to include the Veteran's military personnel records and statements, is at least evenly balanced as to whether the Veteran served in or near the DMZ between September 1967 and August 1971. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran served in or near the Korean DMZ between September 1967 and August 1971. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). As the Veteran is presumed exposed to herbicide agents and has been diagnosed with prostate cancer, entitlement to service connection for prostate cancer is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.