Citation Nr: 21027449 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-27 366 DATE: May 5, 2021 ORDER Entitlement to service connection for prostate cancer residuals is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, he has prostate cancer residuals that are related to a period of active duty for training (ACDUTRA). CONCLUSION OF LAW The criteria for service connection for prostate cancer residuals have been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1969, with additional service in the Army Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office. This case was remanded by the Board in October 2018. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may 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). Veterans who served in the Republic of Vietnam during a certain period are presumed to have been exposed to herbicide agents during service, and the law establishes a presumption of entitlement to service connection for prostate cancer for veterans who have such service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). While the Veteran did not service in the Republic of Vietnam, and he does not assert that he did, service connection based on exposure to toxic chemicals such as herbicide agents may still be established on a direct basis when there is probative medical evidence of actual, direct causation. See, i.e., Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In this case, the Veteran asserts that he was exposed to herbicide agents during periods of extended ACDUTRA training at Fort Chaffee, where Agent Orange testing had been conducted. The Veteran's VA treatment records show that he was treated for prostate cancer in 2003, and that he had bladder incontinence following this treatment. A VA medical examination and opinion was obtained in December 2020. The examining nurse practitioner found that the Veteran currently had erectile dysfunction and a voiding dysfunction that caused hesitancy, urinary frequency, weak stream, and leakage requiring absorbent material. She discussed the Veteran's medical history and the Department of Defense documents that showed that Agent Orange testing occurred at a remote forested location of 3 acres at Fort Chaffee in 1967, which was 3 years prior to the Veteran's service at that base. The examiner found that the Veteran could still have been affected by herbicide agents, even with his training occurring several years after the testing and in a different location, because depending on the wind, the spray could have travelled for miles. She wrote that herbicide agents like dioxin are highly persistent chemicals that only slowly degrade in the environment, and that dioxin present in surface soil may take from 9 to 15 years to degrade to half its concentration, while in subsurface soil, it remains largely unchanged with time. She wrote that dioxin in water settles in sediment and can reenter the water when the sediment is disturbed, and noted that soil sampling done in 2009 still found dioxin in the soil sediment. She concluded that the Veteran's prostate cancer was at least as likely as not related to an in-service injury, event, or disease. The Board therefore finds that that there is adequate evidence that the Veteran has current residuals of prostate cancer, and a competent VA medical professional has related this disorder to the Veteran's service. While it is not actually confirmed that the Veteran had exposure to Agent Orange in service, the Board affords the Veteran the benefit of the doubt, especially in light of this highly favorable VA medical opinion, which was based on an in-person examination of the Veteran and a reasonably accurate understanding of the Veteran's medical history, and was supported by adequate rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The VA medical opinion therefore provides adequate medical evidence to support the Veteran's claim. (Continued on the next page) The Board finds that affording the Veteran the benefit of the doubt, he had exposure to herbicide agents in service, and a competent medical examiner has found that his prostate cancer was caused by this exposure. The claim is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence' the Nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.