Citation Nr: 1336721 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-28 147 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for prostate cancer, claimed as secondary to in-service exposure to herbicides. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from January 1964 to March 1982. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating decision by the RO. In October 2012, the Board remanded the Veteran's claim in order to schedule him for a hearing with a Veterans Law Judge. The Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge in February 2013. A transcript of the hearing has been associated with the Veteran's VA claims folder. FINDINGS OF FACT 1. Based on the Veteran's credible lay assertion of serving in close proximity to the perimeter of Takhli Royal Thai Air Force Base during the Vietnam War, the Veteran is presumed to have been exposed to herbicide agents. 2. The diagnosed adenocarcinoma of the prostate is shown as likely as not to be due to his exposure to herbicide agents while serving in Thailand. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by adenocarcinoma of the prostate is due to his presumed exposure to herbicides that was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000). I. Duties to notify and assist The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013). VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VCAA also requires VA notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence is to be provided by the claimant and which part VA will attempt to obtain on behalf of the claimant. The Board need not, however, discuss the sufficiency of the notification letters sent to the Veteran during the current appeal - or VA's development of his claim - in light of the fact that service connection for prostate cancer is being granted. Thus, any potential deficiency on the part of VA in complying with the provisions of VCAA has essentially been rendered moot by the Board's complete grant of the benefit sought on appeal. II. Law and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include malignant tumors, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). VA regulations provide presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent or greater within a specified period in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. They also provide for presumptive service connection on the basis of herbicide exposure for each additional disease that the Secretary determines warrants a presumption of service connection by reason of having a positive association with exposure to an herbicide agent, and that becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). These diseases include prostate cancer. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57,586-57,589 (1996); 72 Fed. Reg. 32,345-32, 407 (Jun. 12, 2007). While all Veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to an herbicide agent, VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes, as evidenced in a declassified Vietnam era Department of Defense document titled: Project CHECO Southeast Asia Report: Base Defense in Thailand. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. That allows for presumptive service connection of the diseases associated with herbicide exposure. VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C (M21-1MR). The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a Veteran served on one of those air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, that applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10.(q). In Combee v. Brown, the United States Court of Appeals for the Federal held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 24 F.3d 1039, 1043-44 (Fed. Cir. 1994). As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, (see 38 C.F.R. § 3.309(e)), but also must determine whether his current disability is the result of active service under 38 C.F.R. § 3.303(d). III. Analysis The Veteran contends that he developed prostate cancer as a result of his in-service exposure to herbicides. Initially, the Board notes that the Veteran has a diagnosis of adenocarcinoma of the prostate. Also, the service personnel records place the Veteran at Takhli Royal Thai Air Force Base during the designated timeframe when herbicide exposure may be presumed. Specifically, the records show that the Veteran served as an Aerospace Ground Equipment Repairman from July 1965 to July 1966. The Board recognizes that the Veteran's MOS is not one of the MOSs listed in the MR21-1MR that would routinely been deemed to have involved service on or near the air base perimeter. However, during the February 2013 hearing, the Veteran testified that he was responsible for supplying equipment in support all aircraft functions, including maintenance, recovery, loading weapons, operating equipment which provided air and electricity to aircraft, and replenishing mineralized water in the ejection system. See the February 2013 hearing, pages 4-7. He further testified that these activities would take place at the end of the runway on the perimeter of the base. Id at 7. In this capacity, the Board notes that the record included a June 1966 performance evaluation which stated that the Veteran was responsible for the "swift and efficient pickup and delivery of AGE to and from all activities within the aircraft maintenance complex" and performing minor repairs and adjustment to equipment. In short, the evidence of record tends to show that the Veteran served in Thailand during the period when it has been acknowledged that Agent Orange was used near the air base perimeter at Takhli Royal Thai Air Force Base. While the record does not clearly identify whether the Veteran was exposed to Agent Orange while stationed in Thailand, there is no basis in the record to question his testimony that he had contact with the base perimeter while performing his duties. The Veteran's statements as to his activities while stationed in Thailand are competent lay evidence of what he observed during his period of service in Thailand. See Layno v. Brown, 6 Vet.App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Further, although an Aerospace Ground Equipment Repairman is not among the MOSs conceded to have been exposed to herbicides in Thailand, the Board finds the Veteran's testimony credible. See Dalton v. Nicholson, 21 Vet.App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). The Veteran's testimony, taken in conjunction with the information regarding herbicide use in Thailand, supports a finding that the Veteran as likely as not was exposed to herbicides during service. As the Veteran's post-service medical records reflect diagnoses of prostate cancer, service connection is warranted for prostate cancer, as this chronic disease must be presumed to have been incurred during active service due to his exposure to herbicides during service. Thus, based on the Veteran's presumed exposure to herbicides during his active duty as well as his current diagnosis of prostate cancer, service connection is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). ORDER Service connection for prostate cancer is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs