Citation Nr: 21006065 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-45 176 DATE: February 3, 2021 ORDER Entitlement to service connection for residuals of prostate cancer is granted. FINDINGS OF FACT 1. The Veteran served in Korea, visited the demilitarized zone (DMZ) of Korea during the period from April 1968 to August 1971, and is presumed to have been exposed to the herbicide Agent Orange. 2. The Veteran has a diagnosis of prostate cancer, which became manifest after service to a degree of 10 percent or more. CONCLUSION OF LAW Resolving reasonable doubt, the criteria for service connection for prostate cancer, claimed as due to herbicide agent exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1968 to October 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020 the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, such as prostate cancer, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as prostate cancer is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Factual Background and Analysis When affording the Veteran the benefit of doubt, the Board finds that service connection for prostate cancer on a presumptive basis is warranted. The Veteran’s service treatment records were negative for complaints or diagnoses for a prostate disability. On VA examination in September 2015, the VA examiner indicated that the Veteran had residuals of prostate cancer which was first diagnosed in 2007. The residuals of his prostate cancer included voiding dysfunction and erectile dysfunction. No etiology opinion was provided. The Veteran contends that his prostate cancer is related to his exposure to Agent Orange during his service in Korea. The Veteran contends that while the Veteran was stationed at Camp Casey in Korea, he was in close to proximity to where Agent Orange was in use. The Veteran also testified that while working as a radar technician at Camp Casey he one day went on a work detail to the DMV. In an August 2015 statement, the Veteran also indicated that on one occasion in the spring of 1971 during his service he and about 10 or 15 other soldiers visited the DMV in Panmunjom to see where North Korean and South Korean officials “sat at the peace table” to sign their treaty. In an October 2015 statement, a fellow soldier noted that he was stationed with the Veteran at Camp Casey from 1970 to 1971. The fellow soldier reported that the Veteran had opportunities to travel Korea and on one occasion he was able to visit the DMZ where the truce agreement was signed. The Veteran’s service personnel records and service treatment records confirm the Veteran was stationed at Camp Casey from October 1970 to September 1971. Under VA regulations, certain enumerated diseases associated with exposure to herbicide agents, such as Agent Orange, may be subject to presumptive service connection. See 38 C.F.R. §§ 3.307 (a)(6), 3.309(e) (2020). VA regulations provide that a veteran 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 demilitarized zone (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 unless there is affirmative evidence of non-exposure. See 38 C.F.R. § 3.307 (a)(6)(iv). The Board notes that where presumptive service connection associated with herbicide exposure does not apply, an appellant is not precluded from establishing service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). VA has established a procedure for verifying reported herbicide exposure in areas outside of the Republic of Vietnam, including the Korean DMZ. See generally VBA Manual M21-1, IV.ii.1.H.4.a-b. (last accessed April 26, 2017). Where, as here, there is claimed exposure to herbicides in Korea during the qualifying time period, but no indication that the Veteran served in one of the military units identified by the Department of Defense as having operated in the Korean DMZ during such period, the AOJ should send a request to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. See VBA Manual M21-1, IV.ii.1.H.4.b.; VBA Manual M21-1, IV.ii.1.H.7.a. (last accessed April 26, 2017). In a September 2015 DPRIS report, the Joint Services Records Research Center (JSRRC), coordinator noted that they researched the 1971 unit history submitted by the 71st Air Defense Artillery. The JSSRC coordinator found that the tactical site by Battery B was located on the hilltop approximately 10 miles northeast of Camp Casey. However, the history did not document the use, storage, spraying or transporting of herbicides. A September 2015 memorandum indicated the Veteran’s exposure to Agent Orange could not be verified. The Board notes that prostate cancer is a disease, by regulation, that may be presumed as being the result of the herbicide agent exposure under 38 C.F.R. § 3.309 (e). The question in this case is whether the Veteran operated in or near the Korean DMZ between April 1, 1968 and August 31, 1971. The Board finds that the evidence is in equipoise as to whether the Veteran operated in or near the Korean DMZ between April 1, 1968 and August 31, 1971. The Board notes that the Veteran served between October 1970 and September 1971 and was stationed at Camp Casey in South Korea. The service records do not clearly show that the Veteran was exposed to herbicides while stationed in Korea as a September 2015 Memorandum found that that the Veteran’s exposure to Agent Orange could not be verified. However, several lay statements including the Veteran’s July 2020 testimony have been associated with the record to corroborate the Veteran’s service in or near the Korean DMZ. As noted above, the Veteran has presented testimony that he was visited the DMV one occasion during his time at Camp Casey while a fellow servicemember, who served with the Veteran, claimed that the Veteran had the opportunity to travel about Korea which included a trip to the DMZ to visit the site where a peace treaty was signed between North and South Korea. The Veteran is competent to report his activities while at Camp Casey. The Board finds no basis in the record to question the Veteran’s credibility regarding his statements. As a result, when reasonable doubt is resolved in the Veteran’s favor, this evidence is sufficient to corroborate the Veteran’s reports of visiting the DMV while at Camp Casey in Korea. The medical evidence of record shows that the Veteran has a current diagnosis of residuals of prostate cancer. The manifestations of his disability are consistent with at least a 10 percent evaluation under the appropriate diagnostic codes. 38 C.F.R. § 4.119, Diagnostic Codes 7528. As a result, the requirements of § 3.307(a) (6) are met and presumptive service connection of ischemic heart disease is warranted on a presumptive basis. In sum, there is conceded exposure to herbicides, and there is evidence that he has a current diagnosis of residuals of prostate cancer. As a result, service connection for prostate cancer on a presumptive basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.309(e); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James A. DeFrank, 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.