Citation Nr: 21025083 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-47 904 DATE: April 27, 2021 ORDER Entitlement to service connection for prostate cancer, as a result of herbicide exposure, is granted. FINDING OF FACT The Veteran’s prostate cancer is related to service. CONCLUSION OF LAW The criteria for service connection for prostate cancer, to include as a result of herbicide exposure, are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2019. The issue of whether new and material evidence was received for a diabetes claim was denied. The issue of whether new and material evidence for a prostate cancer claim was granted, however, entitlement to service connection for prostate cancer was denied. The Veteran appealed the November 2019 decision to the Court of Appeals for Veterans Claims (CAVC). In an October 2020 Joint Motion for Partial Remand (JMPR) decision, the CAVC vacated and remanded the entitlement to service connection for prostate cancer due to the need for the Board to address whether the January 2013 memorandum evidences the RO’s attempt to verify with JSRRC Appellant’s claim of exposure to herbicides, and, if not, whether the duty to assist required the RO to do so. Resolving reasonable doubt in favor of the Veteran, the Board finds the claim should be granted. The Veteran claims entitlement to service connection for prostate cancer, to include as a result of herbicide exposure. Specifically, he alleges he served in the DMZ as a personal driver for the commander while observing paved roads. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). Additionally, a presumption of service connection arises when certain diseases with a relationship to herbicide exposure, such as prostate cancer, manifests to a degree of 10 percent or more following service in areas with known exposure, including in or near the Korean Demilitarized Zone (DMZ) at any time during the period from April 1, 1968 to August 31, 1971. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). There are specific units determined by VA or the Department of Defense (DOD), listed in VA Adjudication Procedure Manual, M21-1 (M21- 1), as being at or near the Korean DMZ during that time period. 38 C.F.R. § 3.307; M21-1, Part IV, Subpart ii, 1.H.4.a. 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 38 C.F.R. § 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). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104 (a) (2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. Turning to the evidence, service treatment records (STRs) do not reflect any symptoms, diagnosis, or treatment for prostate cancer. A January 2013 memorandum from the Joint Services Records Research Center (JSRRC) found from January 1970 to March 1971 the Veteran served in the U.S. Army as a Quarry Machine Operator in Co. D. 802nd Engineer Bn. (Construction) in Korea. The Veteran’s assigned unit is not one of the units listed in M21- MR, VLii.2. C.1O.p. by the Department of Defense as operating in or near the DMZ during the qualifying time period. Therefore, exposure to herbicides cannot be presumptively conceded. In February 2015, VA treatment records noted elevated prostate antigen levels. In February 2016, VA treatment records reflected a diagnosis of adenocarcinoma cancer. In May 2016, VA treatment records noted carcinoma of prostate as an active problem. In a November 2017 statement the Veteran alleged he traveled to different locations in and around South Korea to include Camp Carrol and Camp Casey. He argues its unrealistic to think that herbicide sprayed in the air did not blow beyond its intended target. He also included articles entitled “Bill would cover more Korean DMZ Vets for Agent Orange exposure,” “Vet exposed to Agent Orange in Korea seeks help,” “Korean Demilitarized Zone and Agent Orange Exposure,” and “Information on Agent Orange Spraying in South Korea.” In August 2018, VA treatment records noted a history of malignant neoplasms of prostate. During the January 2019 Board hearing the Veteran’s representative indicated he was stationed at Camp Eller, which is 20 miles from the DMZ. The Veteran testified to driving the company commander to the DMZ one to two times a week to observe the paved roads. Also, he testified to receiving combat pay for the trips. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds, resolving reasonable doubt in the Veteran’s favor, the current disability is related to service. Specifically, prostate cancer is related to herbicide exposure during service in Korea. Initially, the Board notes the military personnel records confirm the Veteran served in Korea from January 1970 to March 1971. He served on the Co. D. 802nd Engineer Bn. (Construction) as a Quarry Machine Operator. In this case the Veteran’s exposure is presumed. See 38 U.S.C. §§ 1116; 38 C.F.R. §§ 3.307(a)(6)(iv), 3.309(e). Although, the Veteran’s unit, is not one of the units specifically identified as being at or near the perimeter of the DMZ, the Board finds his duties are such that his exposure to herbicide agents are conceded. In a November 2017 statement he indicated he traveled to Camp Carrol and Camp Casey. The Veteran stated, “because I was detailed outside of my original MOS, I never received paperwork or orders reassigning me to the locations that I traveled to during my deployment.” The Board observes that Camp Carroll was a U.S. Marine Corps artillery base constructed along the DMZ and Camp Casey was an Army base approximately 20 minutes from the DMZ. Furthermore, during the January 2019 Board hearing the Veteran’s representative indicated he was stationed at Camp Eller, which is 20 miles from the DMZ. The Veteran testified to driving the company commander to the DMZ one to two times a week to observe the paved roads. In this case the Board finds it is plausible he was sent to locations at or near the DMZ to observe paved roads as his duties included paving roads. There is no contrary evidence to refute the statements. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that the types, places, and circumstances of his military service are such that his exposure to herbicide agents as a result of his military service in Korea is conceded. See 38 U.S.C. § 1154(a). The Veteran’s prostate cancer is entitled to the benefit of presumption for service connection, as the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.309(e). For these reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s prostate cancer is due to exposure to herbicide agents. Accordingly, service connection for prostate cancer is granted as related to herbicide exposure. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.