Citation Nr: 21011709 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-38 383 DATE: March 2, 2021 ORDER Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for diabetes mellitus, type II, is granted. REMANDED Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. The evidence reflects diagnoses of prostate cancer and diabetes mellitus, type II, during the appeal period. 2. Resolving all reasonable doubt in the Veteran’s favor, his assigned duties while stationed in Korea from February 1968 to January 1969, included activities in or near the demilitarized zone (DMZ), and thus, in-service exposure to an herbicide agent is conceded. 3. Prostate cancer and diabetes mellitus, type II, are among diseases which VA presumes to be caused by in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria to establish service connection for prostate cancer are met. 38 U.S.C. §§ 511, 7104, 7105; 38 C.F.R. §§ 3.303, 3.307(a)(6)(iv), 3.309(e). 2. The criteria to establish service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 511, 7104, 7105; 38 C.F.R. §§ 3.303, 3.307(a)(6)(iv), 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1967 to January 1969. This case is before the Board of Veterans’ Appeals (Board) on appeal from December 2017 and January 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran’s Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. In November 2020, the Veteran provided testimony in support of the appeal at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of that hearing is associated with the file. 1. Entitlement to service connection for prostate cancer due to herbicide agent exposure 2. Entitlement to service connection for diabetes mellitus, type II, due to herbicide agent exposure Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including prostate cancer, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Department of Defense (DoD) has identified specific units it has cited that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969. 38 C.F.R. § 3.307(a)(6)(iv). Once exposure to herbicides has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Analysis As analyzing these issues entails application of identical laws to similar facts, the Board will discuss them together. In the present case, it is uncontroverted that diagnoses of diabetes mellitus, type II, and prostate cancer were rendered during the appeal period. Applicable VA laws provide these diseases shall be service connected on a presumptive basis if the evidence of record reflects in-service exposure to an herbicide agent. Given the above facts, the crux of the Veteran’s case is whether his service included exposure to an herbicide agent. To this point, the Veteran does not assert, and the evidence does not reflect, that he served in the Republic of Vietnam; rather, he claims that he was exposed to an herbicide agent (Agent Orange) while serving near the DMZ in Korea. While stationed in Korea at Camp Casey, the Veteran’s Military Occupational Specialty (MOS) was draftsman from February 1968 to January 1969. The Veteran served in the 127th Signal Battalion, which was tasked with establishing communication abilities and providing communications for all units along the DMZ. The evidence of record clearly reflects this information. The Veteran has asserted that, while stationed at Camp Casey, he spent a significant amount of time in the field, including when he assisted in responding to communication alarms, which he compared to fire drills. When an alarm would sound the Veteran would accompany another member of his unit to various locations off base to fix or establish communication structures. The Veteran has stated that these trips were not documented, and included trips north of Camp Casey, toward the DMZ. One location the Veteran recalls responding to was Hill 754, north of Camp Casey, which he described as a listening station for communications. The Veteran provided a buddy statement from K.S. in February 2018, in which K.S. states that he traveled to Hill 754 north of Camp Casey with the Veteran. The Veteran has also submitted various photos, including some with what appears to be communication towers in them. As a draftsman in a unit responsible for communications, it is certainly conceivable that the Veteran would need to spend time in the field, especially where listening stations and other structures necessary to the work of his unit were located. The Board notes the consistency of the Veteran’s assertions in this regard throughout the pendency of the appeal. Given the above facts and the proximity of Camp Casey to the DMZ (approximately 13 miles from the DMZ), the Board finds the Veteran’s assertions that he performed assigned military duties in and near the DMZ in Korea to be credible. As the finder of fact, under the specific set of facts presented in this case, the most probative evidence supports the Veteran’s assertions concerning in-service exposure to an herbicide agent while serving in Korea. In light of above, service connection for diabetes mellitus, type II, and prostate cancer, is warranted on a presumptive basis. 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The Veteran was provided a VA audiological examination in November 2017, and the examiner found that the Veteran does have a diagnosis of tinnitus. However, the examiner opined that the date of onset of his symptoms is unknown and concluded that the Veteran’s tinnitus is a symptom of his diagnosed hearing loss. The examiner further concluded that as the onset of the tinnitus was not during service, and as the Veteran’s MOS was a draftsman, the tinnitus was less likely than not caused by military noise exposure. The Board concludes that the November 2017 VA examiner's unfavorable opinion is inadequate, as the reasoning provided is contrary to the United States Court of Appeals for Veterans Claims' (the Court's) holding in Hensley v. Brown, 5 Vet. App. 155, 159 (1993), and VA Training Letter 10-02 (issued in March 2010) which provides that delayed-onset tinnitus must be considered. Further, the Veteran’s lay statements regarding exposure to excessive noise, to include artillery and gunfire were not considered by the examiner. The Board finds that the examiner did not adequately consider the Veteran’s lay statements with respect to the in-service noise exposure and the continuity of symptoms. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant’s lay assertions regarding onset of symptoms or injury during service). As the medical nexus opinion of record is inadequate for adjudicating these issues, the Board concludes that a remand is necessary for the purpose of providing the Veteran an adequate nexus opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: Provide the Veteran’s claims file to an appropriate examiner, for a medical opinion. The Veteran’s entire claims file, to include a copy of this remand should be provided to the examiner. Should the examiner determine that additional examination should be conducted in order to provide the requested opinion, such examination should be scheduled. Following a complete review of the record, the examiner is asked to provide the following opinions: Assuming that the Veteran was exposed to excessive noise during service, to include artillery and gunfire, as the Veteran credibly testified to at his hearing in November 2020, opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s tinnitus is related to his military service, to include noise exposure in service. The examination report must include a complete rationale for all opinions expressed. Readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.