Citation Nr: 20046597 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-54 224 DATE: July 13, 2020 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure is granted. FINDING OF FACT The competent evidence of record reflects that it is plausible that the Veteran set foot in the Republic of Vietnam, and that service connection may be warranted on a presumptive basis. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1957 to May 1977. This matter was previously before the Board in February 2019, at which time it denied the issues on appeal. The Veteran appealed those denials to the Court of Appeals for Veterans Claims (Court). In February 2020, the Court granted a Joint Motion for Partial Remand (JMPR), reversing the Board’s prior decisions and remanding those claims for further development. Specifically, the Court requested discussion of the Veteran’s claims that he had boots on the ground in Vietnam during service. The requested discussion having been included, the Board is satisfied that there has been substantial compliance with the Court’s order. Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure Generally, to establish service connection for a present disability, “the 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.” Shedden v. Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004). VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). Notably, these were the key compounds found in the tactical herbicides used during that time, with Agent Orange being the most common. Service connection is presumptively warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307 (a)) for: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin’s disease, non-Hodgkin’s lymphoma, porphyria cutanea tarda, multiple myeloma, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson’s disease, B-cell leukemias, respiratory cancers, and ischemic heart disease, and as potentially relevant here, prostate cancer. 38 C.F.R. § 3.309 (e). In this case, after reviewing all evidence currently of record, the Board is willing to accept the Veteran’s assertions that he was physically present in the Republic of Vietnam during his active duty service. Specifically, the Veteran has asserted that he was physically present in the Republic of Vietnam while deployed Airborne Early Warning Squadron ONE (VW-1), where he stated that he was part a detachment that was sent to Chu Lai and later Da Nang, and therefore had boots on the ground in Vietnam. As the Veteran’s representative concedes, the evidence is no necessarily concrete that the Veteran was physically present in Vietnam. Rather the Veteran’s argument rests primarily on documentation reflecting that VW-1 established a forward operating base in Chu Lai, and later in Da Nang, Vietnam for specific detachments of personnel. As a result, although the record does not show that the Veteran was personally part of these detachments, it is clear that such detachments existed in the Veteran’s assigned squadron. Overall, the Board is persuaded by the Veteran’s representative’s argument that the original statute authorizing benefits for veterans exposed to toxic herbicides was not meant to require conclusive evidence. Rather, a veteran is not required to produce substantiating evidence “if the information in the veteran's service records and other records of the Department of Defense is not inconsistent with the claim that the veteran was present where and when the claimed exposure occurred.” See Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. 98-542, Section 5(b)(3)(B) (October 24, 1984). To be clear, it is the Board’s view that the Veteran’s reliance upon decisions by the Court in Barr v. Nicholson, 21 Vet. App. 303 (2007) and Fountain v. McDonald, 27 Vet. App, 258 (2015) may be misplaced, as those cases related to medical evidence. The application of Pentecost v. Principi, 16 Vet App. 124 (2002), is likely similarly inapplicable, as that related to stressor verification under 38 C.F.R. § 3.304(f). Rather, the situation here appears most consistent with the Court’s decision in Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (which nether the Veteran’s representative, nor the JMR, mentioned), which clarified that the above cases, as well as Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), when the question involved non-medical subject matter. Regardless, the Board believes that this particular situation is particularly what Congress anticipated when drafting the above Act. Therefore, exposure to toxic herbicides is conceded. Next, the evidence reflects that the Veteran was diagnosed with adenocarcinoma of the prostate via a biopsy in June 2015. Therefore, he had a current diagnosis of prostate cancer. Therefore, service connection may be granted on a presumptive basis. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Maskatia