Citation Nr: 1222558 Decision Date: 06/28/12 Archive Date: 07/10/12 DOCKET NO. 09-42 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim seeking service connection for prostate cancer, to include as due to herbicide exposure. 2. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from April 1952 to January 1973. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the St. Petersburg Regional Office (RO) of the Department of Veterans' Affairs (VA). In May 2012 a Board hearing was held at the RO before the undersigned Veteran's Law Judge. A transcript of the hearing is of record. Review of Virtual VA reveals no records herein pertinent. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection for prostate cancer was denied by an August 2005 rating decision. It was held that there was no evidence the Veteran had served in Vietnam, so as to warrant presumptive service connection based on herbicide exposure, or that his current prostate cancer was otherwise related to service. He was notified and did not appeal. 2. Evidence received since the August 2005 rating decision is not cumulative or redundant and presents a reasonable possibility of substantiating the claim. It tends to indicate that the Veteran set foot in Vietnam in September 1970 and that he was exposed to herbicides while stationed in Thailand from September 1970 to August 1971. 3. The Veteran has prostate cancer. 4. The Veteran is reasonably shown to have been exposed to herbicides during service, either on a presumptive basis by setting foot in Vietnam in September 1970, or based on his duty near the perimeter of the Nakhon Phanom Air Base in Thailand from September 1970 to August 1971. CONCLUSIONS OF LAW 1. The August 2005 rating decision denying service connection for prostate cancer with erectile dysfunction is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105 (2011). 2. New and material evidence as to the claim for service connection for prostate cancer with erectile dysfunction has been received and the claim for service connection is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for prostate cancer as due to herbicide exposure are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. II. Factual Background The Veteran's personnel records show that he served in the Air Force as a pilot and aircraft commander. He completed a one week Jungle Survival School class (held at Clark Air Force Base (AFB) in the Philippines) in September 1970 and was stationed at the Nakhon Phanom AFB in Thailand from September 1970 to August 1971. On July 2005 VA examination, the Veteran was noted to have current adenocarcinoma of the prostate. In an August 2005 rating decision, the RO denied service connection for prostate cancer, finding that the evidence did not show that the Veteran had in-country service in Vietnam, so as to warrant service connection on a presumptive basis, or that his current prostate cancer was otherwise related to service. The Veteran did not file an appeal. In May 2008, the Veteran filed a claim to reopen the prior claim for service connection for prostate cancer with erectile dysfunction. In his December 2008 notice of disagreement, the Veteran indicated that as per his service personnel records, he was assigned to the Jungle Survival School at Clark AFB in September 1970. After this one week course, he took a charter flight from Clark to his duty station at the Nakhon Phanom AFB in Thailand. He noted that at that time stopovers in Vietnam in transit to Thailand were common and that the charter plane that he was traveling on did in fact stop in Vietnam prior to continuing on to Thailand. He testified that he deplaned while in Vietnam. During the May 2012 Board hearing, the Veteran indicated that while taking a charter plane to Thailand from Clark AFB, his flight landed at the Ton Son Nhut AFB in Vietnam. He noted that as Thailand was an R and R center, the planes frequently brought people from Vietnam to Thailand and vice-versa. The Veteran did not believe that you could have gotten to Thailand from Clark AFB at that time without stopping in Vietnam. The Veteran also testified that his duty in Thailand included checking the entire length of the runways and taxiways approximately six times while pulling duty as the Supervisor of Flying. He indicated that this duty put him about as close to the perimeter of the airbase as one could get. He also indicated that he flew out of the airbase almost every night. III. Law and Regulations The August 2005 decision is final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease (to include Prostate Cancer) to a degree of 10 percent or more at any time after service, the veteran is entitled to service connection even though there is no record of such disease during service. 38 C.F.R. § 3.307. 3.309(e). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. For purposes of these regulatory provisions, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D, 2,4,5-T and its contaminant TCDD; caodylic acid and picoloram. 38 C.F.R. § 3.307(a)(6). Public health information provided by VA indicates that VA has determined that herbicides used on the perimeters of military bases in Thailand between February 28, 1961 and May 7, 1975 may have been tactical and procured from Vietnam, or a strong, commercial type resembling tactical herbicides. To receive VA benefits for diseases associated with herbicide exposure, such as prostate cancer, a Veteran must show on a factual basis that he or she was exposed to herbicides during service as shown by evidence of daily work duties, performance evaluation reports or other credible evidence tending to indicate duty near the air base perimeter. See http://www.publichealth.va.gov/exposures/agentorange/thailand.asp. A 1973 Department of Defense Report indicates that herbicides were heavily used on the Nakhon Phanom AFB from 1968 to 1972 to keep vegetation under control in the fenced areas. See Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972, found at http://www.afhra.af.mil/shared/media/document/AFD-080819-065.pdf. A memorandum from the VA compensation and pension service indicates that there is no documentation of the use of tactical herbicides on airbases in Thailand during the Vietnam War but that commercial herbicides were definitely used within fenced perimeters. Thus, for an individual who had regular contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. VA Manual M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (10)(q-r). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IV. Analysis A. New and Material Claim At the outset, the Board finds that the Veteran's specific assertions that he set foot in Vietnam in September 1970 and that he was exposed to herbicides while stationed in Thailand are new, in that they were not specifically asserted prior to the August 2005 rating decision. These assertions relate to an unestablished fact necessary to substantiate the claim (herbicide exposure in service). They also raise a reasonable possibility of substantiating the claim because, in conjunction with the evidence already of record, they tend to indicate both that the Veteran was exposed to herbicides during service and that he currently has a herbicide related disease. Accordingly, the evidence is new and material, and the claim may be reopened. B. Service connection on the merits The Veteran has alleged exposure to herbicides both on a presumptive basis due to actually setting foot in Vietnam, and on a "facts found" basis due to serving at the Nakhon Phanom AFB in Thailand and being exposed to the base perimeter where at least commercial herbicides were known to have been sprayed. There is no actual documentation of record, such as a flight manifest or other information, indicating that the Veteran actually landed in Vietnam. However, the service personnel records reasonably indicate that after a week of jungle warfare training at Clark AFB in the Philippines, the Veteran was transported to the Nakhon Phanom AFB in Thailand. Taking into account the geography of Southeast Asia and the multiple roles assumed by military personnel traveling to and from the airbases in the area, it is entirely plausible that a military transport from Clark AFB in September 1970 stopped at an airbase in Vietnam to drop off and/or pick up passengers prior to continuing on to Thailand. The Board does not find any reason in the record for finding this account by the Veteran not credible. Regarding the exposure to herbicides while stationed in Thailand, given that the Veteran's duty included repeated checking of the entire length of the runways and taxiways, he is reasonably shown to have had duty near the base perimeter. From some available documentation, it does not appear that the Veteran would have been exposed to any tactical herbicides as a result of the near-perimeter duty. However, he may have been exposed to commercial herbicides, as these products were clearly deployed on the perimeter of Nakhon Phanom AFB. Further, although it is unclear whether the commercial products used at Nakhon Phanom would meet the definition of a herbicide under the controlling regulation, the Board notes that products containing 2,4-D are still used today for weed killing and use of 2,4,5-T as a herbicide in the U.S. was not discontinued until 1985. See e.g. http://www.epa.gov/teach/chem_summ/24D_summary.pdf; http://www.cdc.gov/biomonitoring/2,4,5TrichlorophenoxyaceticAcid_Biomonitoring Summary.html. On the other hand, there is some information that the pertinent herbicides were used outside air bases in Thailand. In sum, there is no documentation of record specifically indicating that the Veteran actually set foot in Vietnam in September 1971 and no documentation of record specifically indicating that he was exposed to an "herbicide" under the controlling regulatory definition while stationed at Nakhon Phanom AFB. However, given that both of these assertions are shown to be reasonable and given that the Veteran's testimony relating to them appears credible, the Board finds that the existing reasonable doubt must be resolved in the Veteran's favor. Consequently, service connection for prostate cancer, as due to herbicide exposure is warranted. Additionally, the July 2005 VA examination report reasonably shows that the Veteran's erectile dysfunction was aggravated by his radiation treatment for prostate cancer. Accordingly, service connection for erectile dysfunction as secondary to prostate cancer is also warranted. CONTINUED ON NEXT PAGE ORDER As new and material evidence has been received, the claim seeking service connection for prostate cancer, to include as due to herbicide exposure, is reopened. Service connection for prostate cancer as due to herbicide exposure is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs