Citation Nr: 21073442 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-52 221 DATE: December 8, 2021 ORDER Service connection for prostate cancer is granted. Service connection for type II diabetes mellitus (DM II) is granted. FINDINGS OF FACT 1. The medical evidence reveals a diagnosis for prostate cancer. The evidence also establishes that the Veteran was exposed to herbicide agents at or near the Korean DMZ during a qualifying period of service. 2. The medical evidence reveals a diagnosis for Diabetes Mellitus Type II (DM II). The evidence also establishes that the Veteran was exposed to herbicide agents at or near the Korean DMZ during a qualifying period of service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer on a presumptive basis have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for DM II on a presumptive basis have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the Army from January 1969 to November 1971. These matters were appealed to the Board of Veterans' Appeals (Board) from a May 2016 rating decision. In October 2021 the Veteran testified at a video teleconference hearing before the undersigned Veterans Law Judge (VLJ). Service Connection 1. Service connection for prostate cancer 2. Service connection for DM II Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain listed medical conditions, including prostate cancer and DM II, may be granted service connection on a presumptive basis due to presumed exposure to herbicide agents, such as Agent Orange. 38 C.F.R. §§ § 3.307(a)(6)(iii); 3.309(e). The availability of presumptive service connection does not, however, preclude a grant of service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); 38 C.F.R. § 3.303 (d). A veteran who served 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 herbicide agents 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). VAMC Dublin treatment records document diagnoses for prostate cancer and DM II. A review of the Veteran's military personnel records demonstrates that his tour of duty fell within the time frame from April 1968 to August 1971 (when use of herbicide agents on the DMZ is acknowledged), although his unit is not on the list of units that are recognized as having exposure to Agent Orange while in the DMZ area. The regulatory presumption only applies to units which the DoD has determined were in areas in or near the DMZ in areas it is known that herbicide agents were used. Exposure to herbicidal agents can however be established on a facts-found basis. During the October 2021 hearing, the Veteran described how his duties as a military counterintelligence officer frequently brought him near and across the Korean DMZ. The Veteran also submitted a June 2014 affidavit in which he describes visiting within five miles of the DMZ on a weekly basis during his service in Korea. The Veteran's military personnel records confirm his service in Korea and his military occupational specialty as a counterintelligence officer. The Board finds no reason to doubt the credibility of the Veteran's testimony especially considering the corroborating documentation of record. Considering the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran was exposed to Agent Orange during his service in Korea. Prostate cancer and DM II are categorized as chronic disabilities under 38 C.F.R. § 3.309 (e) and are entitled to presumptive service connection when exposure to herbicides has been established under the provisions of 38 C.F.R. § 3.307 (a)(6)(iv). Service connection on a presumptive basis for these disabilities is therefore warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.