Citation Nr: 1501055 Decision Date: 01/09/15 Archive Date: 01/13/15 DOCKET NO. 10-27 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for residuals of prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran appeared via live videoconference and provided testimony before the undersigned Acting Veterans Law Judge (VLJ) in September 2014. A transcript of the hearing has been associated with the electronic claims file, Virtual VA. The Board has reviewed the Veteran's physical claims file and electronic files on the Virtual VA system and the Veterans Benefits Management System (VBMS) to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran was stationed at the Royal Thai Air Force Base (RTAFB) in Ubon, Thailand from January to April 1968. 2. Declassified Department of Defense reports show that herbicide agents were used during the Veteran's service at Ubon Royal Thai Air Force Base (RTAFB). 3. Based on his credible assertion of serving near the perimeter of Ubon RTAFB, and resolving all doubt in his favor, the Veteran is found to have been exposed to herbicide agents during his active service. 4. The Veteran's prostate cancer is presumed related to his exposure to herbicide agents while serving in Thailand. CONCLUSION OF LAW The criteria for service connection for residuals of prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he currently suffers from prostate cancer as a result of exposure to herbicides during his active duty service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As to presumptive service connection, certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The diseases associated with herbicide exposure for purposes of the presumption are specified by statute and regulation and include prostate cancer. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. 3.309(e). VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C ("M21-1MR"). 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 the "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. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). First, the Board observes that the Veteran has had prostate cancer and has residuals following treatment of the cancer. See private treatment records from ESJH, dated March 22, 2004 and C.U.A., dated July 18, 2006. Thus, the Veteran has a current disability. Second, the Board finds that the personnel records and service treatment records clearly show that the Veteran was stationed at the RTAFB in Ubon, Thailand. The question remains as to whether the Veteran was exposed to herbicides while stationed in Thailand. Giving the Veteran the benefit of the doubt, the Board finds his job duties brought him near the perimeter of the Ubon RTAFB and he was likely exposed to herbicides during that service. The Veteran has stated that he served at the RTAFB at Ubon with the Munitions Maintenance Squadron. His primary job was to build, warehouse, store, and deliver munitions to the flight line. See Board Transcript, page 3. He testified that his duties involved testing components and that the testing was conducted about 40 feet from the perimeter fence line. Id. He also testified that his primary duty location was the munitions storage site or bomb dump, which was located about six or eight miles off the base and in the middle of the jungle. Id. at 5. He lived on base and thus crossed the perimeter of the base daily. He also made trips to the flight line weekly. Id. at 7. He noted that because of widespread jungle rot, he was issued two pairs of shorts to wear off base at his duty station. Id. at 6. He testified that his job duties occasionally included pulling weeds around the fence of the bomb dump. The Board finds that there is no basis in the record to question the Veteran's credibility regarding his statements as to the nature and responsibilities of his service while at Ubon RTAFB. The Veteran's personnel records show that he was stationed at Ubon RTAFB from January 14, 1968 to April 1, 1968. His military occupational specialty (MOS) was munitions specialist. His duties involved testing components and assembling bombs. A clinical record coversheet, dated March 30, 1968, indicates that the Veteran suffered a wound to the left eye while stationed in Ubon, Thailand. A line of duty determination was issued on March 20, 1968. This document indicates that the Veteran injured his eye while at Ubon, Thailand. More importantly, the document indicates that the injury occurred while off base, at the bomb dump, while the Veteran was performing authorized military duty. Consequently, the Board finds that the evidence supports a finding that the Veteran's daily work duties brought him not only near the perimeter of Ubon RTABF, but that he crossed the perimeter each day, sometimes twice per day when making deliveries to the flight line. Consequently, the Board finds that the Veteran was likely exposed to herbicides while stationed in Thailand. As such, service connection for residuals of prostate cancer is warranted on a presumptive basis. The appeal is granted. ORDER Service connection for prostate cancer residuals is granted. ____________________________________________ A. ADAMSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs