Citation Nr: 20048101 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 17-34 136 DATE: July 17, 2020 ORDER Entitlement to service connection for prostate cancer is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the Veteran was exposed to herbicide agents such as Agent Orange while serving in the Korean Demilitarized Zone (DMZ) during his active duty service. 2. The Veteran’s prostate cancer is related to his in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307 (a)(6), 3.309 (e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to June 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal of an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In April 2020, the Veteran presented testimonial evidence at a video conference hearing held at his local RO before the undersigned Veterans Law Judge. A transcript is of record. Entitlement to service connection for prostate cancer is granted. The Veteran seeks service connection for prostate cancer. Specifically, he contends that he was exposed to herbicide agents while working along the Korean DMZ while stationed at Camp Liberty Bell. He has asserted that “Camp Liberty Bell was the closest main outpost to the DMZ” and that he “frequently patrolled inside the DMZ” in addition to digging holes, clearing brush, and repairing road gullies. See March 2017 Statement in Support of the Claim. Due to this asserted herbicide agent exposure during his time as an infantryman in Korea, the Veteran contends that he is entitled to service connection for prostate cancer. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As an initial matter, the Board notes that certain diseases may be presumed to have been incurred in service where a Veteran was exposed to herbicide agents, such as Agent Orange, while on active service, even when there is no evidence of such exposure during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309 (e). Relevant to the matter at hand, Veterans who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean 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 the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). The Board notes that prostate cancer is one of the diseases presumptively related to exposure to herbicide agent exposure. However, presumptive service connection is not available under 38 C.F.R. § 3.309 (e) in this case as the Veteran served in the Korean DMZ after the qualifying presumptive period ended. Even the Veteran has asserted, through his representative, that he, “is asking for service connection not on a presumptive basis but on a direct basis”. In this regard, even if the Veteran did not serve at the Korean DMZ in a particular unit during the required timeframe, exposure to herbicide agents is not presumed in such instances, but the exposure to one of the herbicide agents listed at 38 C.F.R. § 3.307 (a)(6)(i) can still be established if shown by the facts of the case. Once exposure to herbicide agents has been established by the facts of the case, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide-related diseases is applicable. Here, a diagnosis of prostate cancer is confirmed by the evidence of record. In addition, the Board notes that the Veteran’s military personnel records and DD 214s affirm his assertion that he worked as an infantryman in a unit that was stationed in the Korean DMZ. In this regard, a letter of appreciation dated in August 1976 specifically notes that the Veteran served at “Guard Post OUELLETTE in the Demilitarized Zone separating North and South Korea”. Thus, the dispositive issue in this case is whether the Veteran’s service in the Korean DMZ included exposure to herbicide agents such that an award of service connection for his prostate cancer is warranted. After a review of the evidence of record, the Board finds that service connection is warranted in this case. Overall, the Board finds the Veteran’s reports of his duties at the Korean DMZ to be both competent and credible, as the Veteran’s statements are consistent with the nature and circumstances of his service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Of note, the Veteran’s military personnel records contain an August 1976 Letter of Appreciation from his commanding officer commending the Veteran and his unit, named “best platoon” among Company A, 2nd Battalion 9th Infantry of Camp Liberty Bell, Korea, for a superior performance on Guard Post. Given that the Veteran worked in this position, the Board finds it plausible that he would have “frequently patrolled inside the DMZ” as he has asserted. Further, the Veteran has submitted photographs demonstrating the location and conditions of Camp Liberty Bell, and the Board finds that this visual evidence is consistent with the layout and state of this area as described by the Veteran. In addition, the Board has considered the only nexus opinion of record, authored by a private examiner who considered several articles indicating that herbicide agents can stay in an area for much longer periods than those presumptive periods stipulated by the rating criteria. This examiner also determined that herbicide agent exposure was likely and linked the Veteran’s prostate cancer with this exposure. In a letter dated in August 2019, Mary-Ellen Taplin, M.D., a Professor of Medicine at the Harvard Medical School and Chair of the Executive Committee on Clinical Research stated that she had been the Veteran’s physician since 2017. She noted that while VA has recognized a positive association between exposure to Agent Orange and the Korean DMZ up until August 1971, there are studies that show that estimates of the half-life in subsurface soil may range from 25 to 100 years. She further noted the particular facts of this case which involved the Veteran digging holes in the soil, filling sandbags, clearing brush, raking mine areas, and repairing road ruts. She conclude that “Based on all the evidence, it is my opinion that it is extremely likely that [the veterans] prostate cancer is related to his exposure to Agent Orange or other tactical dioxins remaining in the soil while he was assigned to the Korean DMZ.” (Continued on the next page)   When considering the totality of circumstances surrounding the nature of the Veteran’s service and resolving all doubt in his favor, the Board finds that the Veteran was exposed to herbicide agents approximate to Korean DMZ in the course of his service. 38 C.F.R. § 3.102. In light of the Veteran’s current diagnosis of prostate cancer and his exposure to herbicide agents during service, the Board finds that service connection is warranted and the claim is granted. See 38 C.F.R. § 3.309 (e); 38 C.F.R. § 3.307 (a)(6). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.