Citation Nr: 1319747 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 10-05 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for colon cancer, claimed as due to herbicide exposure. 2. Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from December 1956 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2009, the Veteran requested a Decision Review Officer (DRO) hearing. There is no indication that this hearing was scheduled. However, the Veteran subsequently indicated that he wanted a travel board or videoconference hearing and in September 2012, he requested that his case be forwarded immediately to the Board. Any pending DRO hearing request is considered withdrawn. Regardless, the benefit sought is granted herein and there is no prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). In February 2013, a videoconference hearing was held before the undersigned. The acting Veterans Law Judge identified the issue and discussed the evidence needed to substantiate the claim. Her actions supplement VA's duties to notify and to assist and comply with any related duties owed during a hearing. The Virtual VA eFolder has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In February 2013, the Veteran submitted a statement indicating that he was withdrawing the claim of entitlement to service connection for colon cancer. 2. Service in the Republic of Vietnam is not shown; however, the evidence is at least in equipoise as to whether the Veteran was exposed to herbicide agents during his period of service at Udorn Air Base, Thailand. 3. Evidence of record shows a diagnosis of prostate cancer, which is a disease associated with exposure to certain herbicide agents. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal concerning the claim of entitlement to service connection for colon cancer are met. 38 U.S.C.A. § 7105(d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for prostate cancer, claimed as due to herbicide exposure, are met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e) (2012); VA's Adjudication Procedures Manual, M21-1MR, Part IV.ii.2.C.10.q. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for Colon Cancer In June 2009, the RO denied entitlement to service connection for colon cancer. The Veteran disagreed with the decision and subsequently perfected this appeal. In February 2013, the Veteran submitted a statement indicating that he wished to withdraw the issue of entitlement to service connection for colon cancer. His intent to withdraw the issue was also noted on the record at the videoconference hearing. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn by an appellant or his representative in writing, or on the record at a hearing, at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.204(a), (b). There remain no allegations of errors of fact or law for appellate consideration as concerns the issue of entitlement to service connection for colon cancer. Accordingly, the Board no longer has jurisdiction to review this issue, and the appeal of the issue is dismissed. Service Connection for Prostate Cancer In June 2009, the RO denied entitlement to service connection for prostate cancer. The Veteran disagreed with the decision and subsequently perfected this appeal. Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable decision in this case, a detailed discussion regarding how VA satisfied its duties to notify and to assist pursuant to the VCAA is not required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis In general, service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection will be presumed for certain chronic diseases, including malignant tumors, if manifest to a compensable degree within one year after discharge from active duty. 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. VA records note a diagnosis of prostate cancer, confirmed by biopsy in 2007. Thus, the Board concedes evidence of current disability. Evidence of record does not show that prostate cancer was diagnosed during service or within one year following discharge from service, and the Veteran does not contend as such. Rather, the Veteran contends that prostate cancer is related to in-service herbicide exposure and that presumptive service connection is warranted. In his July 2009 notice of disagreement, he reported that he did step in Vietnam and that defoliants were used on the air base he was stationed at in Thailand. At the videoconference hearing, he testified that he was stationed at Udorn Air Force Base in Thailand from 1966 to 1967. He was a weapons mechanic and loaded stores and stocked munitions on airplanes. He stated that he did security patrols on the perimeter because they had to check the revetments. He worked on the perimeter several times a week. He also testified that two times he went on secret missions, which involved taking personnel (who he believed were from the Central Intelligence Agency (CIA)) to Vietnam. He stayed there about 24 hours. The law establishes a presumption of service connection for disease associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during such service to herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to herbicide agents shall be the last date on which he served in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009) (service in the Republic of Vietnam means that the Veteran actually set foot within the land borders of Vietnam). The list of diseases associated with exposure to certain herbicide agents includes prostate cancer. See 38 C.F.R. § 3.309(e). This disease shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Service personnel records show that the Veteran served in the Air Force and was stationed at Udorn Air Base, Thailand from February 1966 to March 1967. Military occupational specialty (MOS) was munitions load crew member. Service records do not show service in Vietnam and information from the service department received in June 2007 indicates that they were unable to determine whether the Veteran had in-country service in the Republic of Vietnam. The Veteran is competent to report that he set foot in the Republic of Vietnam. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (the Veteran is competent to report on that of which he or she has personal knowledge). A February 2006 VA outpatient record, however, notes that he did not walk through any defoliated areas and was stationed across from the Republic of Vietnam. The Veteran's reported history regarding secret missions does not appear consistent with the circumstances of his service as set forth in performance evaluations, etc. The Veteran also submitted copies of photographs, which he contends were taken while he was in Vietnam. The pictures, however, do not contain any identifying information and the Board does not find them sufficient to establish Vietnam service. Notwithstanding, the Board must also consider whether he was exposed to herbicides while stationed in Thailand. VA's Compensation & Pension Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases. Specifically, if the Veteran served in the U.S. Air Force in Thailand during the Vietnam era at certain Royal Thai Air Force Bases, including Udorn, as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then VA should concede herbicide exposure on a direct or facts found basis. See VA's Adjudication Procedures Manual, M21-1MR, Part IV.ii.2.C.10.q. If herbicide exposure is not conceded on a facts-found basis, the M21-1MR directs additional development, to include placing a "Memorandum for the Record" in the file and sending a request to the U.S. Army & Joint Services Records Research Center (JSRRC) for verification of herbicide exposure. Id. On review, the claims folder contains a Memorandum for the Record regarding "Herbicide use in Thailand during the Vietnam Era." The memorandum indicates that Compensation and Pension Service reviewed a listing of herbicide use and test sites outside Vietnam provided by the Department of Defense (DoD) and a series of DoD monographs describing the use, testing, and storage of herbicides at various foreign and domestic locations. Additionally, they reviewed the Project CHECO Southeast Asia Report: Base Defense in Thailand. While the CHECO Report did not note the use of tactical herbicides on bases in Thailand, it did indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. If a Veteran's MOS was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. There were, however, no records to show that the same tactical herbicides used in Vietnam were used in Thailand. In March 2009, the JSRRC indicated that it could not document or verify that the Veteran was exposed to herbicides while serving at Udorn Air Force Base. It was noted that herbicides were sprayed in 1964 and 1965 in a coastal area near Pranburi, Thailand. Udorn is not on the DoD listing of herbicide spray areas and test sites outside the Republic of Vietnam. Additionally, unit histories do not mention or document any herbicides spraying, testing, or storage at Udorn. In June 2009, the RO determined that the Veteran was not exposed to Agent Orange during the Vietnam era and completed a formal finding. The Board acknowledges the development conducted by the RO and has considered the negative evidence as set forth above. However, the evidence shows that the Veteran served in the Air Force and was stationed at Udorn Air Force Base, Thailand during the Vietnam era. Although the Veteran was not a security policeman or a dog handler, he testified that his duties involved working along the perimeter of the air base several times a week. Review of his performance evaluation reports shows that he was responsible for supervising the loading team during all phases of flight line and periodic maintenance. He supervised the loading of air munitions explosives and propellant devices on aircraft and maintained, installed, modified and repaired aircraft rocket, release and gun systems. He was also selected for temporary duty to a forward operating base as an armament systems advisor to friendly foreign forces. The CHECO Report indicated that the perimerter of Udorn Air Force Base was very close to the aircraft at several points. The Veteran's military duties appear to have involved extensive work with loading and unloading munitions on aircraft and it seems reasonable to believe that he spent time working on the flight line and at or near the perimeter of the air base. On review, the Board finds that the evidence is at least in equipoise as to whether or not the Veteran was exposed to herbicides while stationed in Thailand. Resolving reasonable doubt in the Veteran's favor, the Board finds evidence of in-service herbicide exposure on a facts found basis. See 38 C.F.R. § 3.102. There is a current diagnosis of prostate cancer and thus, service connection is warranted. ORDER The appeal of the denial of entitlement to service connection for colon cancer, claimed as due to herbicide exposure, is dismissed. Service connection for prostate cancer, claimed as due to herbicide exposure, is granted. ____________________________________________ HOLLY SEESEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs