Citation Nr: 23011782 Decision Date: 02/24/23 Archive Date: 02/24/23 DOCKET NO. 18-44 994 DATE: February 24, 2023 ORDER Entitlement to service connection for prostate cancer is granted. FINDING OF FACT The Veteran was exposed to herbicide agents during active service at Fort Gordon, Georgia. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to August 1969. It is unfortunate that in November 2018, the Veteran died. The appellant is his surviving spouse. Following the Veteran's death, the appellant requested to be substituted as the claimant for this claim. In a May 2019 memorandum, the RO found that the appellant could be properly substituted as the claimant for the claim currently on appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for prostate cancer Prior to his death, the Veteran was seeking service connection for prostate cancer. The Veteran asserted that he was exposed to herbicides while stationed at Fort Gordon, Georgia from August 1967 to October 1967. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a presumptive basis for certain disabilities resulting from exposure to herbicides. The diseases which are presumed to result from exposure to herbicides include prostate cancer. 38 C.F.R. § 3.309 (e). A review of the Veteran's military personnel records reveals that he was assigned to Fort Gordon between August 1967 to October 1967. A May 2018 Defense Personnel Records Information Retrieval System (DPRIS) response indicated that DPRIS was unable to locate 1967-unit records submitted by Company E, 4th Battalion, 2nd Brigade, Fort Gordon, Georgia. Therefore, due to the lack of unit records available, DPRIS wase unable to document that the Veteran was exposed to Agent Orange or other tactical herbicides during the period August 24, 1967, to October 20, 1967, while at Fort Gordon, Georgia. In June 2018, the Armed Forces Pest Management Board provided additional information regarding the Veteran's claimed herbicide exposure. It was noted that the records that have been discovered indicate that Herbicide Orange was tested at Fort Gordon during a 3-day period from July 15-17, 1967, and at unspecified dates after April 1, 1968. Although the use of Agent Orange was one month prior to the Veteran's service, the Board takes notice that VA regulations recognize that herbicide agents may persist in an environment many years after an exposure event. See, e.g., 38 C.F.R. § 3.307 (a)(6)(v) (conceding exposure to herbicide agents for veterans who served onboard certain aircraft used to apply herbicide agents during the Vietnam era, including Reservists who served onboard those aircraft years later). Here, exposure to herbicide agents is consistent with the place and circumstances of the Veteran's service at Fort Gordon shortly after herbicide agents were tested there. See 38 U.S.C. § 1154 (b). (Continued on the next page) Although the Veteran did not serve there when the testing occurred, he did serve there one month later, and VA regulations contemplate that in certain instances herbicide agents may persist in an environment. And while there is no direct evidence that the Veteran was present at the testing sites, there is no direct evidence that he was not present. However, there is indirect evidence of exposure, as the medical evidence of record is consistent with an exposure event in service. Here, taking into account the place and circumstances of the Veterans service, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran was exposed to herbicide agents during his service at Fort Gordon during the Vietnam era. The Board finds on a "facts found" basis that the Veteran's service at Fort Gordon resulted in his exposure to herbicide agents. As noted above, prostate cancer is presumptively associated with exposure to herbicide agents. The Veteran had a current diagnosis of prostate cancer. See June 2017 VA examination. Moreover, no intercurrent etiology of prostate cancer is shown. Accordingly, service connection for prostate cancer is warranted, as presumptively related to exposure to herbicide agents, and the appeal is granted. Ardie A. Bland Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.