Citation Nr: 21072315 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 20-14 679 DATE: December 2, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for prostate cancer residuals is reopened. New and material evidence having been submitted, the claim of entitlement to service connection for bladder cancer residuals is reopened. REMANDED Entitlement to service connection for prostate cancer residuals is remanded. Entitlement to service connection for bladder cancer residuals is remanded. FINDINGS OF FACT 1. A January 2013 rating decision denied the Veteran's claim for service connection for prostate cancer residuals. The Veteran did not appeal or submit new and material evidence within a year of the rating decision; thus, the January 2013 rating decision became final. At the time of the January 2013 rating decision, the Agency of Original Jurisdiction (AOJ) found the Veteran did not have an in-service event or nexus. Since then, the Veteran testified as to how his military occupational specialty (MOS) exposed him to herbicide agents while serving in Korea from March 1966 to April 1967. This evidence is new and material and raises a reasonable possibility of substantiating the claim. 2. An October 2010 rating decision denied the Veteran's claim for service connection for bladder cancer residuals. The Veteran did not appeal or submit new and material evidence within a year of the rating decision; thus, the October 2010 rating decision became final. At the time of the October 2010 rating decision, the AOJ found the Veteran did not have an in-service event or nexus. Since then, the Veteran testified as to how his MOS exposed him to herbicide agents while serving in Korea from March 1966 to April 1967. This evidence is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for prostate cancer residuals. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bladder cancer residuals. 38 U.S.C. § 7105 (2019); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2020). REASONS FOR REMAND The Veteran served on active duty from November 1965 to October 1967. He appeals a July 2017 rating decision by the Department of Veterans Affairs (VA) AOJ denying the reopening of claims for service connection for prostate and bladder cancer residuals. A Board of Veterans' Appeals (Board) hearing was held in September 2021. A transcript is of record. The Veteran contends his prostate and bladder cancer were caused by exposure to herbicide agents while serving in Korea. Specifically, he contends his duties as a Miliary Policeman sent him to serve at Camp Casey and along the Korean demilitarized zone (DMZ) where he noted the entire landscape was "flat, barren" and "brown" without vegetation. See August 2017 notice of disagreement (NOD); see also September 2021 Board Hr. Tr. at 4. He further contends he guarded barges in the Inchon tidal basin that transported "blue barrels with the yellow and orange stripes" to be unloaded, among other cargo. See September 2021 Board Hr. Tr. at 3; see also August 2017 VA Form 21-4138. The Veteran contends that "everybody knew what it was. It was Agent Orange that we brought in." Id. Finally, the Veteran contends he was tasked to guard President Johnson during his visit to a Camp that the Veteran stated "had just been sprayed with [herbicide agents]." See August 2017 NOD. VA provides a presumption of herbicide exposure for veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975. See 38 C.F.R. § 3.307 (a)(6)(iii). VA also provides a presumption of herbicide exposure where a veteran served in or near the Korean DMZ during certain time periods. 38 C.F.R. § 3.307 (a)(6)(iv). Specifically, a veteran with active service 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 DMZ, in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed to an herbicide agent. Id. In a case where a veteran alleges herbicide exposure outside of those locations, the presumptive provisions do not apply, and exposure must be determined on a case-by-case basis. See 38 C.F.R. § 3.309(e). Here, the record does not reflect, and the Veteran does not contend he ever served in or around the Republic of Vietnam. Additionally, military personnel records reflect the Veteran served with the 503rd Military Police Detachment in Korea from March 1966 to April 1967, which is prior to the regulatory presumptive period for operating in or near the Korean DMZ. Thus, any potential exposure to herbicide agents must be determined on a case-by-case basis. In September 2019, the AOJ attempted to verify one of the Veteran's contentions by requesting the Defense Personnel Records Information Retrieval System (DPRIS) search the record during March 1967 to verify if the Veteran was tasked to guard President Johnson during his visit to Camp Casey. The request was fruitless and DPRIS noted "they were unable to locate 1967 Unit records" from the 503rd Military Police Detachment. See February 2020 DPRIS response. The AOJ did not make further attempts to verify the Veteran's potential exposure to herbicides even though the February 2020 statement of the case (SOC) erroneously noted the AOJ contacted the Joint Services Records Research Center (JSRRC) for the development done by DPRIS. Additionally, an August 2019 letter from a soldier, C.J., reflects the Veteran was sent to guard President Johnson in October or November of 1966, not in March 1967. See August 2019 C.J. letter. Thus, as the AOJ did not properly attempt to verify the Veteran's potential exposure to herbicides, additional development is needed. The matters are REMANDED for the following action: 1. Obtain any outstanding and updated relevant VA and/or private treatment records and associate the same with the claims file. 2. Contact any appropriate entity to attempt to verify the Veteran's potential in-service exposure to herbicide agents. The Veteran contends was exposed to herbicide agents while serving in Korea as a military policeman: (a) along the DMZ, (b) guarding barges in the Inchon tidal basin that contained "blue barrels with the yellow and orange stripes" he believed to contain herbicide agents, and (c) guarding President Johnson during his October to November 1966 visit to Korea. Military personnel records reflect the Veteran served with the 503rd Military Police Detachment in Korea from March 1966 to April 1967 and he contends he served in numerous facets throughout Korea. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.