Citation Nr: 21032595 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-01 597 DATE: May 27, 2021 ORDER Service connection for prostate cancer, to include as due to herbicide agents exposure, is granted. FINDINGS OF FACT 1. The competent and probative evidence of record is at least in equipoise that the Veteran was exposed to herbicide agents. 2. The Veteran has a current diagnosis of prostate cancer, which is presumed related to his in-service herbicide agents exposure during his active military service in Korea. CONCLUSION OF LAW The criteria for service connection for prostate cancer and residuals, to include as due to herbicide agents exposure, are met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from April 1969 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing in April 2021; a transcript of that hearing is of record. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA will presume that a veteran who served in Korea between September 1, 1967 and August 31, 1971 was exposed to herbicide agents if they: (1) served in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period); and (2) herbicides are known to have been applied in the area in which they served. See 38 U.S.C. § 1116B; 38 C.F.R. § 3.307(a)(6)(iv). Service incurrence for certain diseases, to include prostate cancer, will be presumed on the basis of association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Such presumption, however, requires evidence of actual or presumed exposure to herbicide agents. Id. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that the availability of presumptive service connection from some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Agent Orange Exposure The Veteran asserts that he was exposed to herbicide agents while he was stationed at in Korea, to include as part of his military occupational specialty (MOS). His service dates fall within the presumptive time period. The question for the Board is whether the Veteran was exposed to herbicide agents during his service. The Board concludes that the evidence is at least in equipoise that the Veteran was exposed to herbicide agents during active service near the DMZ. The Veteran has submitted lay testimony regarding his service in Korea near the DMZ. He explained that he worked on vehicles that returned from the DMZ. The vehicles would have herbicide agents on them. Additional buddy statements have been submitted in support as well. One statement explained that Agent Orange barrels were damaged at the ASCOM depot. The buddy statement also explained that Agent Orange was stored there. The Veteran also testified at the Board hearing that he made a trip to the DMZ to obtain additional supplies in addition to repairing vehicles that he believed had herbicide agents on them. The Board finds that the lay statements are credible and competent and are entitled to probative weight. The lay statements are consistent with one another and have remained consistent during the period on appeal which the Board finds adds to the credibility. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Joint Services Records Research Center (JSRRC) determined that the Veteran's units were not stationed at the DMZ. After review of the competent and probative evidence, the Board finds the evidence is at least in equipoise that the Veteran was exposed to herbicide agents when he was stationed in Korea. The Board acknowledges the negative JSRRC response. However, the Veteran has provided competent and credible testimony as well as credible buddy statements regarding herbicide agents exposure during his time in service in Korea. Clear evidence is not needed, just that the evidence on a material issue be in equipoise. 38 U.S.C. § 5107(b). Given the above, the Board concludes that the Veteran is entitled to presumptions based on exposure to herbicide agents based on the facts of this particular case and the evidence before the Board. See 38 C.F.R. §§ 3.307, 3.309, 20.1303. Entitlement to service connection for prostate cancer, to include as due to herbicide agents exposure. The Veteran contends that his prostate cancer is related to in-service herbicide agents exposure. The Veteran has a current diagnosis of prostate cancer, to include as reported in VA treatment records. See 5/1/2017, CAPRI. As such, the first element of service connection is met. (Continued on the next page) The Board concludes that because prostate cancer is a condition for which service connection can be granted on a presumptive basis when exposure to herbicide agents is established, entitlement to service connection for prostate cancer is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. As such, service connection for prostate cancer is granted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.