Citation Nr: A22011847 Decision Date: 06/23/22 Archive Date: 06/23/22 DOCKET NO. 190225-11723 DATE: June 23, 2022 ORDER The appeal as to the issue of entitlement to service connection for tinnitus is dismissed. Entitlement to service connection for prostate cancer, claimed as a result of exposure to herbicide agents is granted. FINDINGS OF FACT 1. Subsequent to the Veteran's filing of a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which he disagreed with a January 2019 rating decision that denied service connection for tinnitus, the agency of original jurisdiction (AOJ), in a November 2020 rating decision, effectuated a March 2018 grant of service connection for tinnitus by the Board of Veterans' Appeals (Board); a disability rating and effective date was also assigned. 2. The Veteran at least as likely as not had exposure to herbicide agents while stationed at Camp Casey in South Korea. 3. The Veteran has been diagnosed with prostate cancer, which is a disability recognized by VA as etiologically related to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claim of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105. 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for prostate cancer, as presumptively due to exposure to herbicide agents, to include Agent Orange, are met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1969 to October 1970. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law created a new framework for veterans dissatisfied with VA's decision on their claim to seek review. In the instant case, the Veteran chose to participate in VA's test program, the Rapid Appeals Modernization Program (RAMP). This decision is thus being written consistent with the new framework. In his May 2018 RAMP election form, the Veteran requested that all eligible issues then currently on appeal be processed as a Supplemental Claim. In this regard, the Board notes that by electing to participate in the RAMP, his appeals under the legacy system were withdrawn. The AOJ then issued an AMA rating decision pursuant to the RAMP in January 2019, in which the AOJ continued previous denials of service connection for prostate cancer and tinnitus; the January 2019 rating decision is the decision on appeal. On July 12, 2019, the Veteran filed a VA Form 10182 on which he elected the Hearing docket. On February 15, 2022, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ). Therefore, the Board may only consider the evidence of record at the time of the RAMP supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Regarding the February 15, 2022, hearing, unfortunately, there were audio malfunctions throughout the hearing, and the Board was unable to produce a transcript of the hearing. In April 2022, the Board sent a letter to the Veteran that informed him of the inability to produce a transcript of his February 2022 Board hearing and of his right to request a new hearing. That same month, the Veteran responded, stating that he did not wish to appear for a new hearing. Dismissal Regarding the issue of entitlement to service connection for tinnitus, the Board notes that in a March 2018 decision, the Board granted service connection for tinnitus. A decision review officer (DRO) then failed to effectuate the grant of service connection for tinnitus, apparently on the grounds that he did not agree with the Board's decision. In the January 2019 RAMP supplemental claim decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for tinnitus, not taking into consideration the fact that the Board had granted service connection for such in the March 2018 decision. The Veteran then included the issue of entitlement to service connection for tinnitus in his July 2019 VA Form 10182. In November 2020, however, a DRO issued a rating decision effectuating the Board's grant of service connection for tinnitus, and a 10 percent rating was assigned, effective November 9, 2011, the date of receipt of his claim. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. As the RO has now implemented the Board's March 2018 grant of service connection for tinnitus, there remains no adverse action for the Board to adjudicate. Accordingly, the Board is without jurisdiction to review the appeal with respect to this issue, and the appeal is therefore dismissed. See 38 U.S.C. § 7105. Service Connection In the instant case, the Veteran is seeking service connection for prostate cancer, which he believes is related to exposure to Agent Orange while stationed in South Korea at Camp Casey. Generally, to establish direct service connection, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether elements are met is based on an analysis of all the evidence of record, and evaluation of its competency, credibility and probative value. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Baldwin v. West, 13 Vet. App. 1, 8 (1999). The law further provides that there are certain diseases, to include prostate cancer, that are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for certain veteran presumed exposed herbicides, to include Agent Orange, who develop an identified disease recognized by VA's Secretary as etiologically related to such exposure. The Board acknowledges that VA recognizes that herbicides were used along the demilitarized zone (DMZ) in Korea and that exposure to herbicides will be presumed if a veteran was assigned to a specified unit between April 1, 1968, and August 31, 1971. However, the Veteran does not contend, and the evidence otherwise fails to establish, that he was assigned to one of the units specified by the Department of Defense (DoD) as having presumed exposure to Agent Orange. The Board notes that it is undisputed that the Veteran served in South Korea from August 21, 1969, to October 20, 1970, and that he was assigned to the "1st Battalion, 31st Artillery." It is also undisputed that Camp Casey was the installation closest to the Korean DMZ during the presumptive period and that several of the units entitled to presumptive exposure belonged to the same command structure, the 7th Infantry Division, as the Veteran's unit. Further, in support of his claim, the Veteran has asserted that, while stationed in South Korea at Camp Casey, he participated in exercises along the DMZ. Specifically, during his June 2017 hearing, the Veteran testified that he frequently tested the "Honest John Rockets" near the DMZ. The Veteran described seeing the DMZ fence during field testing exercises. The Veteran further stated that he witnessed an ambush near the DMZ in which four United States soldiers died and that information was made public in a news article further supporting his assertion that he was near the DMZ. The Veteran also testified that his primary military occupational specialty was fire direction control and that he was involved in selecting firing sites near the DMZ where defoliants had been sprayed. Notably, however, the Veteran's DD Form 214 indicates that his military occupational specialty (MOS) was as a clerk typist and his service medical records show that he was a radio/telephone operator and a clerk in the headquarters battalion. In support of his assertions, the Veteran has submitted several buddy statements from his fellow service members who attested to the fact that the Veteran's initial duties fire direction control and that he served as a fire direction control specialist, as well as a battalion personnel clerk. In a January 2015 letter, R.L. states that while serving with the Veteran they often left Camp Casey and traveled near the vicinity of the DMZ where they lived in tents and sometimes slept on the ground in sleeping bags. In a September 2015 letter, C.L.F. states that while serving with the Veteran in the DMZ in October 1969 and while present with the Veteran, the reported ambush occurred. C.L.F. states that their unit was called near the DMZ to identify potential targets and firing sites for the rockets in their unit. Separate letters submitted by T.S. in September 2015, by L.S. in November 2015, and by T.R. in August 2015 confirm that, along with the Veteran, they went near the DMZ to identify targets and firing sites for the rockets in their unit. In an April 2018 statement, H.W. stated that on October 18, 1969, four 7th Infantry Division soldiers were ambushed and killed and that their unit, 1st Battalion, 31st Artillery, was called to the DMZ and that the unit remained in vicinity of the DMZ from October 18 to 26, 1969. H.W. stated that during that time, the Veteran and all members of the unit were in physical contact with the soil and vegetation at the fence line of the DMZ. In a separate statement also dated in April 2018, R.J. stated that he and the Veteran were trained in fire direction control at Fort Sill, Oklahoma, during the period from May through July 1969. Here, although the Veteran's unit is not one identified as having operated in the DMZ during the qualifying time period, the Board finds the Veteran's competent lay statements, as well supported by the statements submitted by his fellow service members, regarding having to perform duties along, or near, the DMZ to be credible. Further, as noted above, it is undisputed that Camp Casey was the installation closest to the Korean DMZ during the presumptive period and that several of the units entitled to presumptive exposure belonged to the same command structure, the 7th Infantry Division, as the Veteran's unit. The Board also notes that the Veteran has referenced numerous Board decisions in which a different veterans who served during the applicable presumptive period were granted service connection based on service at Camp Casey. Notably, five of the decisions referenced concern veterans who served in the Veteran's unit. Although the findings and conclusions of previous Board decisions are binding only with regard to the specific case decided therein, the Board does strive for consistency in issuing its decisions. See 38 C.F.R. § 20.1303. The Board also acknowledges that the U.S. Armed Services Center for Unit Records Research (CURR) (now the U.S. Army & Joint Services Records Research Center (JSRRC)) responded to a request for verification of service along the DMZ, stating that unit histories indicate that the 1st Battalion, 31st Artillery was stationed at Camp Casey, approximately 13 miles from the DMZ, and participated in field training exercises. It was stated, however, that the unit histories did not document that the 1st Battalion, 31st Artillery performed any specific duties along the DMZ. Although the Veteran's presence along the DMZ cannot be confirmed by the unit histories, there is also no affirmative evidence to establish that the Veteran himself did not go to the DMZ. Given the evidence as a whole, particularly including the lay statements, and in consideration of the benefit-of-the-doubt doctrine, the Board is unable to conclude that the evidence is persuasively against the Veteran's having been present near the DMZ and therefore having been exposed to Agent Orange while stationed in Korea. Having determined that it is as likely as not that the Veteran was exposed to an herbicide agent in service, the Board finds that an award of service connection for prostate cancer is warranted on a presumptive basis. This is so because the evidence of record shows that the Veteran has been diagnosed as having prostate cancer and there is no affirmative evidence of record to support a conclusion that the disease was not incurred in service. According, as the Veteran has prostate cancer and he is presumed to have been exposed to herbicide agents, to include Agent Orange, the criteria for service connection for prostate cancer, on a presumptive basis, are met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.