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BVA Denial of service connection for prostate cancer relied on insufficient efforts to verify herbicide exposure

BVA Denial of service connection for prostate cancer relied on insufficient efforts to verify herbicide exposure

Summary

The Veteran served on active duty in the Army from 1969 to 1971, including service in the Republic of Korea.  While in service he worked as a sentry dog handler.  As a handler, the Veteran came in direct contact with at least one  unbathed dog from Vietnam.  In addition to his duties as a dog handler, the Veteran  patrolled a defoliated mountaintop.  On at least one occasion he saw contractors with backpack sprayers along the perimeter fence.  The Veteran submitted claims for service connection for prostate cancer, erectile dysfunction, and depression.  An administrative determination issued in response to his claim stated that the evidence was insufficient to verify claims of herbicide exposure.  His claim was therefore denied.

Board denied service connection for prostate  cancer, ED, and depression in July 2016

The Board denied service connection for prostate cancer, erectile dysfunction, and depression in a July 2016 decision.  This decision was based on the May 2013 VA determination that the Veteran was not entitled to presumed herbicide exposure.  The Board then found that Camp Casey and Camp Page, where the Veteran was stationed, are 13 and six miles from the DMZ, respectively.  VA does not consider either of these camps to be  part of the DMZ.  Finally, it found that administrative findings failed to support the Veteran’s lay reports of defoliants and defoliant sprayers.  VA determined that these statements alone were insufficient evidence of actual herbicide exposure.

CCK appeals to the Court

CCK successfully appealed to the Court the denial of service connection for prostate cancer, erectile dysfunction, and depression.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Board erred by failing to ensure that VA fulfilled its duty to assist the Veteran.  Specifically, the Veteran did not express any belief in regards to which location exposed him to herbicides, yet VA sought records pertaining to his service at only one of multiple locations.  The Court thus found the record inadequate without those records.  It concluded that VA made insufficient efforts to verify herbicide exposure as it did not request verification of exposure to herbicides based on each location of the Veteran’s service in Korea.

Accordingly, the Court vacated the Board’s denial of service connection for prostate cancer and remanded that matter for readjudication.  The Court also remanded the Veteran’s claims for erectile dysfunction and depression  as inextricably intertwined with his claim for  prostate cancer.

To read a copy of the Court’s decision, click here. 

 

Category: Court Wins

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