Citation Nr: 22017587 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-35 284 DATE: March 25, 2022 ORDER Entitlement to service connection for prostate cancer is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his prostate cancer is at least as likely as not related to exposure to herbicide agents during his active-duty service. CONCLUSION OF LAW Service connection for prostate cancer is warranted. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1961 to November 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision. In February 2022, a virtual hearing was held before the undersigned; a transcript is in the record. Entitlement to service connection for prostate cancer is granted. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To substantiate a claim of service connection, there must be evidence of: a present disability (for which service connection is sought); incurrence or aggravation of a disease or injury in service; and a causal relationship between the claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A Veteran who, during military service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). The Department of Defense (DoD) has determined that herbicide (including Agent Orange) was used along the Korean DMZ from April 1, 1968, to August 31, 1971. Veterans assigned to one of the units listed as being at or near the Korean DMZ during that time period are also presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iv). If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active service and has contracted an enumerated disease (to include prostate cancer), the Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The presumptive provisions of 38 U.S.C. § 1116 have been extended to encompass Veterans shown to have been otherwise exposed to tactical herbicides in service, including while serving in Thailand, or on the DMZ in Korea. When a claimed disorder is not included as a presumptive disorder under 38 C.F.R. § 3.309(e), direct service connection may nonetheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). VA has not conceded that Veterans stationed on Johnston Island were exposed to herbicide agents and thus entitled to presumptive service connection for the diseases listed under 38 C.F.R. § 3.309. Nonetheless, the Veteran has provided credible supporting documentation that persuades the Board to find that he was exposed to herbicide agents during his active-duty service while stationed on Johnston Island. The Veteran claims that he was exposed to herbicide agents in service while performing his duties as a chemical operations specialist. He asserts that he was exposed to Agent Orange (AO) while escorting shipments of toxic agents from Okinawa to Johnston Island for storage or while he was stationed on Johnston Island from June 1971 to September 1971 or while he was stationed on Johnston Island after Hurricane Celeste, during which time he was tasked with checking for leaks and damaged barrels. His service treatment records (STRs) do not show complaints of, treatment for, or a diagnosis of, prostate cancer. The Veteran's personnel records show that he served on Johnston Island from June 1971 to September 1971. An October 1972 Army memorandum notes that the Veteran was commended for his participation in the Johnston Island recovery operation. An Army Commendation Medal (ARCOM) citation was awarded for the Veteran's service from December 1969 to April 1973 at Edgewood Arsenal and notes participation in various operations. He participated in Operation Chase which moved obsolete munitions to Sunny Point, North Carolina. The Veteran also participated in all phases of Project Red Hat, first serving on Okinawa, then servicing as NCOIC of the port team on Tengan Pier. Additionally, he accompanied the shipload of munitions to Johnston Island where he helped supervise the transfer of cargo into the designated storage area. The Veteran further participated in the Johnston Island recovery team which was called out as an emergency action after the island was heavily damaged by Hurricane Celeste. An April 1977 Army efficiency report notes that the Veteran was involved in several unique, hazardous missions which included the neutralization and disposal of agent contaminated items, detoxified wastes, and other hazardous materials. A September 2017 VA memorandum notes, in part, that VA lacked the information the U.S. Army and Joint Service Records Research Center (JSRRC) required verifying herbicide exposure in Germany and Johnston Island. It was noted that the Veteran's personnel records indicated that he was sent TDY to Johnston Island for 3 months from June 28, 1971, to September 22, 1971, to assist with evacuation and re-entry to Johnston Island due to Hurricane Celeste, which was prior to the dates that herbicides were stored at Johnston Island (from 1972 through 1977). A fact sheet attached to the memorandum notes, in part, that approximately 1.5 million gallons of Agent Orange were stored on Johnston Island between April 1972 and September 1977, when the AO was incinerated at sea. A July 2019 VA treatment record notes that the Veteran had a procedure for prostate cancer in 2005 during which seeds were implanted in his prostate. The prostate cancer is currently in remission. In an April 2020 statement, the Veteran reported that he participated in Operation Red Hat in 1971, which involved the relocation of toxic chemicals and AO from Okinawa to Johnston Island. He related that in 1972, he was assigned to Johnston Island as part of a recovery team tasked with securing all of the toxic storage sites after it was hit by Hurricane Celeste. At the February 2022 virtual hearing, the Veteran testified that he participated in Operation Red Hat, which involved moving toxic agents (presumably also AO) from Okinawa to Johnston Island. He related that the task was accomplished in five shiploads, he was in charge of the shipping team that prepared the chemicals to be loaded on the ships to go to Okinawa, and he was directed to inspect the shipment and verify, with protective gear, that there were no leaking chemicals in that compound that could not be shipped. The Veteran reported that although he actually touched the AO canisters, he did wear protective clothing. The Board notes that a September 2017 VA memorandum indicated that the Veteran's personnel records show he was TDY to Johnston Island from June 28, 1971, to September 22, 1971, to assist with evacuation and re-entry to Johnston Island after Hurricane Celeste. Although he was assigned to Johnston Island during that time, the identified purpose does not appear to be accurate. Hurricane Celeste did not hit Johnston Island until August 1972; therefore, the Veteran would not have been assigned there for a recovery operation in 1971. The most likely reason for the June to September 1971 assignment noted in the personnel records would have been due to his participation in moving the toxic agents to Johnston Island in 1971. It is not clear why the hurricane recovery assignment is not listed as a separate assignment in the Veteran's personnel files, but it is clear that he participated in the 1972 recovery operation due to his award of an ARCOM for such service. The Board notes that although the Veteran's submissions of articles regarding Operation Red Hat do not conclusively prove that AO was included in those particular shipments from Okinawa to Johnston Island, the evidence of record (to include a September 2017 VA fact sheet (noted above)) clearly reports that approximately 1.5 million gallons of Agent Orange were stored at Johnston Island between April 1972 and September 1977, and the Veteran served on Johnston Island during that time. During such assignment he was tasked with examining the storage facilities for damages and leaks, which most likely would have been under hazardous conditions due to the extensive damage to the island after the hurricane, and although he variously notes the wearing of protective gear, it is plausible that during his extended stay on the island that he would have had some type of (even incidental) contact with the chemicals and was not simply on the island while the chemicals were present. Additionally, the Veteran's Certificate of Release or Discharge from Active Duty identifies his in-service specialty as a chemical operations specialist. Further, the Veteran's statements and testimony note that his related duties included the transportation, maintenance, storage, cleaning and destruction of aging lethal chemical weapons. The Veteran presents as a credible historian, as his testimony is well-documented throughout the record and consistent with the nature of his service. His testimony is additionally supported by his commendation confirming his service at Johnston Island working directly with hazardous chemicals. Upon review of the above, the Board concludes that the evidence is in equipoise as to the contended exposure. Thus, in interpreting the evidence in the light most favorable to the Veteran, the Board finds that he was exposed to herbicide agents during service. Such a finding requires triggers the consideration of presumptive service connection in this case, as certain diseases are presumed to have been incurred in-service if they manifest to a compensable degree within specified periods, and 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). As prostate cancer qualifies as one such disease, service connection is thus warranted on a presumptive basis. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bayles, James J. 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.