Citation Nr: 21007964 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 17-22 238 DATE: February 11, 2021 ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to herbicide or other chemical exposure. 2. Entitlement to service connection for a heart disorder to include ischemic heart disease and chest tumors, also to include as due to herbicide or other chemical exposure. REMANDED Entitlement to service connection for prostate cancer, to include as due to herbicide or other chemical exposure is remanded. Entitlement to service connection for a heart disorder to include ischemic heart disease and chest tumors, also to include as due to herbicide or other chemical exposure is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1965 to July 1968. This matter is before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in January 2021. A copy of the hearing transcript has been associated with the claims file. At the hearing, the VLJ clarified the issues currently on appeal before the Board. The VLJ expanded the chest tumor issue to include ischemic heart disease. See January 2021 Hearing Transcript, pp. 2-3. Indeed, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. The VLJ also granted the Veteran’s representative’s motion to advance the appeal on the docket pursuant to 38 C.F.R. § 20.900 (c) (2018). There has been no prejudice to the Veteran in this regard. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran perfected his appeals in April 2017. He cited various laws and regulations governing service connection and exposure to herbicide agents. He requested that the attached evidence be considered, and that VA resolve any reasonable doubt in his favor. As discussed below, in light of the Veteran’s remarkable evidentiary submissions and hearing testimony, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for prostate cancer, to include as due to herbicide or other chemical exposure is remanded. 2. Entitlement to service connection for a heart disorder to include ischemic heart disease and chest tumors, also to include as due to herbicide or other chemical exposure is remanded. The Board incorporates its discussion from the sections above by reference. To establish service connection a Veteran must generally 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, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease 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). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Effective February 24, 2011, VA previously amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245-01 (Jan. 25, 2011). The DMZ cuts the Korean Peninsula roughly in half following the geographic 38th parallel north latitude and is approximately 155 miles long and 2.5 miles wide. The DoD has advised that herbicides were not applied within the DMZ, but were applied in some adjacent areas. Specifically, DoD has reported that herbicides were applied between April 1968 and July 1969 along a strip of land 151 miles long and up to 350 yards wide along the southern edge of the DMZ north of the civilian control line. The herbicide agents were applied through hand spraying and hand distribution of pelletized herbicides; there was no aerial spraying. DoD also has provided VA a list of the military units that are currently known to have operated in that area during the period that herbicides were applied. See 74 Fed. Reg. 36640, 36641. 38 U.S.C. § 1116B. Presumption of herbicide exposure for certain veterans who served in Korea A veteran described in this paragraph is a veteran who, during active military, naval, or air service, served in or near the Korean Demilitarized Zone (DMZ), during the period beginning on September 1, 1967, and ending on August 31, 1971. 38 U.S.C. § 1116B (a)(2). (emphasis added.) Diseases.—A disease specified in this subsection is— (1) a disease specified in paragraph (2) of subsection (a) of section 1116 of this title that becomes manifest as specified in that paragraph; or (2) any additional disease that— (A) the Secretary determines in regulations warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent; and (B) becomes manifest within any period prescribed in such regulations. 38 U.S.C. § 1116B (b)(2). For the purposes of this section, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307 (a)(6)(i). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied. AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630-27641 (2003). The Board observes that in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). By way of history, the Veteran submitted private treatment records in March 2013. A September 18, 2012 private treatment record from M. H. shows that the Veteran underwent a coronary intervention, a stenting of the right coronary artery with two drug-eluting stents. The Veteran had a history of chest pain. The impressions include coronary arty disease status post multiple coronary interventions and prostate cancer. Another clutch of private treatment records relates to prostate cancer. It includes a Surgical Pathology Report from AmeriPath in Cleveland from December 2010. There were impressions of prostate pathology. Next, a November 3, 2013 VA Memorandum from the Joint Services Records Research Center (JSRRC) shows that Camp Casey was located approximately thirteen miles from the DMZ. However, there was no record of any herbicide or chemical storage, spraying, or transporting of the claimed chemicals or herbicides. It also indicates that the Veteran’s unit did not perform any specific duties along the DMZ. Since then, the Veteran has continued submitting detailed correspondence and research throughout the appeals period. In correspondence attached to the October 2014 Notice of Disagreement (NOD), the Veteran concisely explains his theory of entitlement: The I Corp, 8th Army HQs 7th div and 2nd div Army areas over lapped. My duties required me to travel and work in conjunction with other units of the 707 maintenance battalion and units. My base camp was Camp Casey, but keep in mind my duties were many. You can see the attached pictures of the mobile repair van I used. Also included are driving records, promotion list that indicates some other units that I traveled to, the fence line that was typical of camps along the DMVQ and north of Seoul. The attached item (1) JSCM-112-68 the Joint Chiefs of Staff Declassified 1 Nov 94. “…One and one-half battalions of the US 7th Infantry Division have been diverted from their primary mission as the 8th Army reserve in order to provide for the security of critical US Army installations.” I served in the 7th division from May 1966 until June 1967 in the DMZ & north of Seoul. I have been treated for ischemic heart [disease] with 7 stents & on medicine daily. I’m being treated for prostate cancer with radiatio treatment, medicine and titanium seeds. Most recently I’m being treated for tumors in my breast. I feel all of this was caused by exposure to pesticides & herbicides in service to my country. Throughout 2017, the Veteran continued to submit photographs, documents, news articles, and lay statements attempting to corroborate his duties placing him in the DMZ prior to 1968. In a supplemental May 2017 VA Form 9, the Veteran wrote “Please see previous materials submitted since August 2011.” He wrote that his base camp was Camp Casey near the DMZ between 1966 and 1967. Next, the Veteran testified at the January 2021 Hearing. The Veteran described that he was exposed to both herbicide agents and DDT while in Korea. He testified: And because of that they panicked, and he did a lot of purchasing of herbicides off the shelf, and there’s a declassified document that’s attached from the 8thArmy and the declassified goes back to February of ’67 and ’66. And it states how the South Korean soldiers intentionally coated different poisons to look like rice, because they didn’t want to trigger another front. Because of the panic, a lot of stuff was classified, and they never told us what was being done until this document was declassified around 2003, and there’s a copy of that I submitted in the appeal. See January 2021 Hearing Transcript, p. 6. The Veteran went on to testify that herbicides were sprayed along the compound posts. He explained how he became involved with the understaffed 7th division. The Veteran recounted: So, as of October and going into November from ’66 on, we became more of an infantry soldier and a truck driver. That’s why a copy of my driver’s license where I would go to ASCOM back to the DMZ --perform guard duties along patrols, because of the shortage of manpower. And if you look at my camp, the picture at the basecamp, you’ll see the clearing around it. They sprayed around those fence lines because we had infiltrators, and it’s also in the newspaper articles that I attached of North Korean saboteurs. They blew up buildings. They had a curfew. They would shoot them in the village. So, all of that’s in the --matter of fact, the --one of the VFW leaders was in the 7thDivision later on, and he documented in his article for the VFW about the high tense of combat, but it was classified because they did not want to trigger another front. And that was why they covered up --for security reasons and political reasons back in the states that they didn’t want to say that we had a second front. So, there were chemicals used in violation of our own laws, plus there’s a document from the --from Greenbelt in the attachment, that they had no records of using any chemicals prior to 1972, because it wasn’t required. So, the Federal Government doesn’t even have any records of what they used. See January 2021 Hearing Transcript, p. 7. The Veteran also described being exposed to DDT used for pest control. He reported, “ They would come through the dirt roads. They would spray DDT for malaria, because they had a lot of open rice patties with fecal material --human waste material. Dengue fever --there’s a report from the Royal Australian Military about the problem with fever.” Id. He recounted that he was at Camp Casey, Camp Hovey, Camp Kaiser, and on night patrols. Id at p. 8. The Veteran referenced photographs. In light of the Veteran’s testimony, the VLJ identified additional development. So, that --our goal is to see whether or not we can substantiate that it was as likely as not that you were exposed to adverse chemicals to include DDT and herbicides during your time of service, particularly in South Korea. And then our further goal is to determine, you know, if you were exposed to herbicides. That’s going to be --going to be sadly helpful, because that would be a presumptive situation. But if we can only establish it was DDT, we may have to get medical opinions regarding your current situation and the likelihood that it was associated --it’s associated with such exposure. So, we’ve got a little bit of work to do. But you’re --basically, you’re passing the ball on to us and we’ll take it from here and try to --try to assist you in the development of this claim. See January 2021 Hearing Transcript, p. 11. The Veteran contends that he is entitled to service connection for prostate cancer, and a heart disorder to include ischemic heart disease and chest tumors; all to include as due to herbicide or other chemical exposure. Next, the Board observes that since the Veteran perfected his appeals, there has been a liberalizing change in the governing law. Prior to January 1, 2020, the regulations extended the presumption of in-service herbicide exposure to certain Veterans who served in Korea as part of a unit that, as determined by the Department of Defense, operated near the Korean DMZ (in an area where herbicide agents were known to have been applied) between April 1, 1968 and August 31, 1971. By way of background, on January 29, 2019, the Federal Circuit Court issued an en banc decision in Procopio v. Wilkie which held that the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 includes the territorial sea of the Republic ... and is not limited to the landmass or inland waterways of that nation,” essentially reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Procopio v. Wilkie, 913 F.3d 1370 (Fed. Cir. 2019). Thus, the presumption of herbicide exposure now extends to “Blue Water” Navy veterans who served aboard a ship that navigated within a 12 nautical mile radius off the coast of Vietnam. During the pendency of the appeal, 38 U.S.C. § 1116, the statute pertaining to the presumption of in-service herbicide exposure was revised pursuant to P.L. 116-23 , § 3(a), 133 Stat. 969 (added June 25, 2019). Effective January 1, 2020, 38 U.S.C. § 1116A was added to extend the presumption of in-service herbicide exposure to Blue Water navy veterans who served within 12 nautical miles off-shore of the Republic of Vietnam between January 9, 1962 and May 7, 1975. In addition, 38 U.S.C. § 1116B was also added regarding the presumption of herbicide exposure for veterans who served near the Korean DMZ. Under 38 U.S.C. § 1116B the presumption of herbicide exposure extends to a veteran who, during active military, naval, or air service, served in or near the Korean DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. See 38 U.S.C. § 1116B (in effect from January 1, 2020). In essence, 38 U.S.C. § 1116B extended the date range for application of the presumption of herbicide exposure to veterans who served along the DMZ during the Vietnam era, which previously did not begin until April 1, 1968. Here, additional development is necessary to fully develop the Veteran’s claim. VA should seek clarification as to whether the Veteran’s unit was in or near the Korean DMZ, particularly in light of the evidence he has submitted. This is important because of the change in legislation merely requires a Veteran to have been in or near the Korean DMZ during a relevant time period to be presumed exposed to certain herbicide agents. See 38 U.S. Code §1116B. Presumption of herbicide exposure for certain veterans who served in Korea. Development consistent with this law should be undertaken, to include contacting the VA Compensation and Pension Service and the Joint Services Records Research Center (JSRRC) to verify the claimed Agent Orange and any other chemical exposure. Lay evidence, photographs, and other documents submitted by the Veteran including throughout 2017 should be considered. The Veteran’s history of serving at bases in addition to Camp Casey should be explored. After completing the development to corroborate his unit’s locations and the environment in which they operated, the Veteran should be afforded a set of VA examinations to determine the nature and etiology of his claimed disabilities. Indeed, VA must provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is evidence of diagnosed ischemic heart disease and prostate cancer in the private treatment records. The Board observes that even if presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for his claimed disabilities with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). Therefore, VA examinations with medical opinions are necessary. Lastly, any outstanding VA treatment records since February 2017 should be included in the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records since February 2017, and associate them with the Veteran’s claims folder. 2. Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents and other chemicals, including DDT. If more details are needed, contact the Veteran to request the information. If herbicide and/or other chemical exposure cannot be verified by the VA Compensation Service, seek verification from the JSRRC. Forward the Veteran’s contentions regarding the nature of his exposure to herbicides and chemicals to the JSRRC, and request verification of this. The JSRRC should attempt to verify the claimed exposure by taking into account the Veteran’s military unit, location, dates at the location, military occupation, and any other relevant facts as shown by his service records. If insufficient information is present to permit a search by the JSRRC, refer the case to the JSRRC coordinator to issue a Formal Finding that sufficient information required to verify herbicide exposure and chemical exposure do not exist. Attention is directed to the Veteran’s January 2021 hearing testimony. He described that he was at Camp Casey, Camp Hovey, Camp Kaiser, and on night patrols. See January 2021 Hearing Transcript, p. 8. 3. After completing the development above, please schedule the Veteran for a VA examination to determine the nature and etiology of any heart disorder to include ischemic heart disease and chest tumors, also to include as due to herbicide or other chemical exposure. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. If and only if the Veteran’s exposure to chemicals (e.g. DDT) is confirmed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to exposure to chemical exposure in service. The examiner should provide a rationale for all opinions expressed. 4. After completing the development above, please schedule the Veteran for a VA examination to determine the nature and etiology of any prostate cancer, to include as due to herbicide or other chemical exposure. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service. If and only if the Veteran’s exposure to chemicals (e.g. DDT) is confirmed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to exposure to chemical exposure in service. The examiner should provide a rationale for all opinions expressed. 5. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.