Citation Nr: 18123960
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 15-32 824
DATE:	August 6, 2018
ORDER
Entitlement to service connection for prostate cancer is granted.
Entitlement to service connection for diabetes mellitus, Type II is granted.
Entitlement to service connection for bladder cancer is granted.
FINDINGS OF FACT
1.  Between December 1966 and January 1968, the Veteran served in the 1st Battalion, 38th Infantry in the Republic of Korea.
2.  The evidence of record including the places, types, and circumstances of the Veteran's service is at least evenly balanced as to whether he served during a time and at a location where herbicide agents were used and was exposed to such herbicide agents.
3.  The Veteran had been diagnosed with prostate cancer.
4.  The Veteran had been diagnosed with diabetes mellitus, Type II.
5.  The evidence is at least evenly balanced as to whether the Veteran's bladder cancer was related to herbicide agent exposure.
CONCLUSIONS OF LAW
1.  The Veteran's prostate cancer is presumed to have been incurred in his active military service.  38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 
2.  The Veteran's diabetes mellitus, Type II is presumed to have been incurred in his active military service.  38 U.S.C. §§ 1101, 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 
3.  The criteria for service connection for bladder cancer are met.  38 U.S.C. §§ 1101, 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from July 1966 to July 1968.  He died in January 2016.  The appellant is his surviving spouse and who, as indicated below, has been substituted as the claimant in the appeal.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  
In November 2016, the appellant appointed the Oklahoma Department of Veterans Affairs as her representative. 
In March 2017, the appellant was substituted in the appeal.  38 U.S.C. § 5121A.
Service Connection
The Board notes that VA has certain duties to notify and assist claimants.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  Given the favorable action taken below, the Board will not discuss further whether those duties have been accomplished.
Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first 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).
Service connection may also be established on a presumptive basis for if a veteran was exposed to an herbicide agent, such as Agent Orange, during service.  See 38 U.S.C. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  Although veterans who served in Vietnam are presumed to have been exposed to herbicide agents, the Veteran served in Korea.  Certain veterans who served in Korea are presumed to have been exposed to herbicide agents, such as Agent Orange.  Under current regulations, a veteran who served between April 1, 1968, and August 31, 1971, 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, is presumed to have been exposed to an herbicide agent.  38 C.F.R. § 3.307(a)(6)(iv).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  
The threshold issue in this case is whether the Veteran had in-service herbicide agent exposure.  His personnel records confirm that he served in Korea between December 1966 and January 1968.  Beginning April 1, 1968, his assigned organization (1st Battalion, 38th Infantry) is recognized by the DOD as operating in an area near the DMZ and from that date qualifies for a presumption of herbicide agent exposure.  38 C.F.R. § 3.307(a)(6)(iv); VA Adjudication Manual IV.ii.1.H.4.b.  A June 2005 Center for Unit Records Research (CURR) reported that herbicides were used in Korea from 1967 to 1969 as part of counter-infiltration operations.  It reported Agent Orange was used from April 1968 to August 1968.  The Veteran stated that he was directly involved in the spraying of herbicides while in Korea.  See February 2014 Veteran report.  Then, the Board notes there is a pending House Resolution that would extend presumptive herbicide agent exposure to Veterans serving in or near the Korean DMZ beginning September 1, 1967.  See Blue Water Navy Vietnam Veterans Act of 2017, H.R. 299, 115th Cong. (2018).  The evidence cited to support this bill suggests herbicide agents were used near the Korean DMZ during the Veteran’s service.  Id.
Given the above evidence, the Veteran is not entitled to the presumption of herbicide agent exposure under the current terms of 38 C.F.R. § 3.307(a)(6)(iv).  However, his reports, assignment in a unit that is presumed to have had herbicide exposure from April 1, 1968, the June 2005 CURR letter acknowledging herbicide use during the Veteran’s time in Korea, and pending legislation are sufficient to bring evidence regarding herbicide agent exposure into a state of relative equipoise.  See 38 U.S.C. §§ 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record).  The Board will consider the Veteran as having demonstrated herbicide agent exposure during active service on a direct basis.  Id. 
1. Entitlement to service connection for prostate cancer
As explained above, the evidence is sufficient to show that the Veteran incurred herbicide agent exposure during service in Korea on a direct basis.  Prostate cancer is a disease presumptively associated herbicide agent exposure.  38 C.F.R. § 3.309(e).  Private medical records confirm that the Veteran had prostate cancer during the claims period.  Service connection for prostate cancer is therefore warranted.    
2. Entitlement to service connection for diabetes mellitus, Type II
As explained above, the evidence is sufficient to show that the Veteran incurred herbicide agent exposure during service in Korea on a direct basis.  Diabetes mellitus, Type II is a disease presumptively associated with herbicide agent exposure.  38 U.S.C. § 1116(a)(2)(H); 38 C.F.R. § 3.309(e).  In February 2014, the Veteran submitted a Disability Benefits Questionnaire (DBQ) from his physician confirming a diabetes mellitus, Type II diagnosis.  The additional medical records reference diabetes mellitus, Type II as part of the Veteran’s medical history.  Service connection for diabetes mellitus, Type II is therefore warranted. 
3. Entitlement to service connection for bladder cancer
The appellant contends service connection is warranted for post-service bladder cancer.  Although bladder cancer is not a disease presumptively associated with herbicide agent exposure, entitlement to service connection can nevertheless be demonstrated on a direct basis.  See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). 
The medical records reflect that the Veteran was diagnosed with prostate cancer in 2003.  August 2008 private medical records confirmed that the prostate cancer had spread to the Veteran’s right shoulder and he received palliative radiation therapy for treatment.  
January 2013 private medical records show that the Veteran had a urology consultation for gross hematuria starting approximately three months ago.  The urologist noted the Veteran’s prostate cancer and right shoulder metastatic disease medical history.  He reported that the hematuria etiology was unclear.  He suspected that it included some element of radiation related problems.  He also noted the Veteran’s tobacco use history. March 2013 and April 2013 private medical records confirmed a bladder cancer diagnosis.  The Veteran underwent a bladder tumor resection.  April 2013 private medical records reflected that the etiologies of bladder cancer were discussed with tobacco use specifically noted.  
In December 2016, Dr. N, who is qualified as a radiation oncologist, submitted a letter in support of the claim.  She reported treating the Veteran for metastatic prostate cancer.  She expressed a positive medical opinion regarding the etiology between Agent Orange exposure and each of the Veteran’s cancers.  She cited her review of the medical studies indicating a link between Agent Orange and prostate cancer and other cancers and the absence of a family history for prostate cancer for the Veteran.
The evidence is at least evenly balance as to whether bladder cancer is related to herbicide agent exposure.  Dr. N’s medical opinion highly persuasive since she is qualified as a specialist, expressed her opinion in certain terms, and explained the reasons for her conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).  Although tobacco use was initially noted as a possible etiology, the treating physician’s statements regarding this etiology appear tentative when considered in the entirety of the treatment record.
For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s bladder cancer is related to his herbicide agent exposure.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bladder cancer is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

  

 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. D. Simpson, Counsel 
Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.