Citation Nr: 1754715 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-41 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Katrina Eagle, Attorney ATTORNEY FOR THE BOARD M. Yacoub, Associate Counsel INTRODUCTION The Veteran had active air service from April 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in September 2015, at which point it was remanded for additional development. It has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2017). FINDINGS OF FACT 1. The Veteran had verified service at Andersen Air Force Base (AFB) in Guam from March 1968 to September 1968; and Kadena AFB, in Okinawa, Japan from March 1969 to September 1969 as an aircraft mechanic. 2. The most probative evidence of record does not indicate evidence of duty or visitation at U-Tapao AFB or the Republic of Vietnam (RVN) and does not indicate that the Veteran was exposed to Agent Orange or other herbicides during his active duty. 3. Prostate cancer was not present during active service or within one year following the Veteran's separation from active service, and has not otherwise been related to active service. CONCLUSION OF LAW The criteria for service connection for prostate cancer have not been met. 38 U.S.C. § 1110, 1112, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has asserted that he was exposed to herbicides while serving in Thailand, Guam, and/or Japan; and that he developed prostate cancer as a result of such exposure. First, the Board notes that the Veteran received the Vietnam Service Medal with one Bronze Service Star, and the Republic of Vietnam Gallantry Cross with Palm. Such medals are not indicative of service on the landmass of Vietnam or inland waterways. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The service personnel records (SPRs) reflect that the Veteran served in Guam and Japan and the Veteran does not assert that he served in Vietnam. Instead, the Veteran testified that he served at U-Tapao Royal Thai Air Force Base (RTAFB) in Thailand during a classified bomber mission. The Veteran asserted that he is entitled to presumptive service connection on the basis that he was exposed to herbicide agents in Thailand. In this respect, he stated that he serviced aircrafts at U-Tapao RTAFB, witnessed the spraying of herbicides, and was otherwise surrounded by barrels of herbicide. The Veteran's service personnel records in fact confirm his service in both Japan at Kadena AFB, and in Guam at Andersen AFB, and that he served as an aircraft mechanic. Record searches returned no evidence that the Veteran was in fact stationed or served at U-Tapao RTAFB or at any other location in Thailand. At the Veteran's RO hearing in March 2015, he testified that on a classified mission, he stopped at U-Tapao RTAFB where they refueled aircrafts on the perimeter of the base, and that they had to keep planes near the perimeter for bomb loading. The Veteran reported his presence at U-Tapao RTAFB as a secret bombing mission, wherein he managed to find time to report into town to purchase a souvenir for his mother, and brought coins as evidence of his presence in Thailand. With regard to his presence at Andersen AFB, the Veteran testified that he performed similar duties, such as refueling of planes, bomb loading, and that he was exposed to herbicides since he was once again near the perimeter and he witnessed it being sprayed on the runways. Finally, the Veteran reported similar duties in Okinawa. At the outset, the Board notes that the RO contacted the Center for Unit Records Research (CURR) (currently U.S. Army and Joint Services Records Research Center (JSRRC)) to determine whether herbicides were used at Andersen AFB in Guam and Kadena AFB in Okinawa. In a November 2016 response from CURR, it was noted that they were not able to document the spraying, testing, storage, or use of Agent Orange at Andersen AFB or on the island of Guam during 1968. They further stated that Andersen AFB was not listed in the History of the U.S. Department of Defense (DOD) Programs for the Testing, Evaluation, and Storage of Tactical Herbicides and the listing of DOD of herbicide spray areas and test sites outside of Vietnam. They further found no evidence of the use of herbicides at Kadena AFB. VA has established a procedure for verifying exposure to herbicides in Thailand during the Vietnam Era. VA 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." Consideration of herbicide exposure on a presumptive basis is extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. The majority of troops in Thailand during the Vietnam era were stationed at the RTAFBs 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. Initially, the Board notes that the Veteran's presence at U-Tapao has not been confirmed through official channels. However, were the Board to concede the Veteran's presence at U-Tapao, exposure to herbicides would remain unestablished as the Veteran has not claimed having served as a security policeman, security patrol dog handler, or member of a security police squadron. The Veteran's MOS simply is not listed as an MOS which would have placed him at the perimeters of the base. The Veteran has also not contended that he was ever involved in tests of tactical herbicides used at the Pranburi Military Reservation from April to September 1964, and the VA memorandum notes that other than the 1964 tests on the Pranburi Military Reservation, tactical herbicides were not used or stored in Thailand. VA has acknowledged that some Operation RANCH HAND aircrafts flew insecticide missions in Thailand from August 1963 to September 1963 and in October 1966. However, the Veteran was not in Thailand in 1963 or 1966. To the extent that the Veteran contends that the planes he serviced were maintained at the perimeters of the bases, the Board finds that such an assertion is inherently speculative so as to not constitute credible evidence of exposure to herbicides as it does not logically follow that any aircrafts would be maintained at the perimeter of an Air Force Base. Furthermore, in June 2016, the JSRRC reviewed a copy of the U.S. Air Force Historical Research Agency Memorandum for the Department of Veterans Affairs from August 2015 pertaining to the USAF installations operating in Thailand from 1963 to 1976. Therein, they found that there was no documentation or evidence found showing the use of tactical herbicides such as Agent Orange on any USAF installation in Thailand for vegetation control during the Vietnam era. Therefore, confirmation of presence at U-Tapao RTAFB notwithstanding, they were unable to document or verify that the Veteran could have been exposed to Agent Orange or any other tactical herbicide. With respect to insecticides, small-scale herbicide usage to clear weeds in and around the bases and airstrips were commercial products and not Agent Orange or tactical herbicides. VA has determined that there are no presumptions based on exposure to commercial herbicides. If the Veteran was exposed to commercial herbicides in Thailand, his exposure risk would be similar to exposure to the commercial herbicides sold and used in the United States. Here, the Veteran stated that he witnessed spraying of herbicides occurring in both Thailand and Guam. However, the Veteran is not considered competent to state that those were herbicide agents and not commercial herbicides. In this regard, the record does not demonstrate that he had any special training or knowledge so as to render him competent to attest to the type of agent sprayed around him. Further, as noted by CURR, the available historical data did not document Agent Orange or other tactical herbicides that were sprayed at any of the bases at which the Veteran served during his period of active service. As such, the Veteran's statements regarding use of Agent Orange or other tactical herbicides around any base are not probative. The Board notes that the Veteran and his representative have submitted evidence consisting of photos and maps of the U-Tapao RTAFB (where it has not been proven that the Veteran served), maps of Thailand, photographs, and past Board decisions regarding exposure. At the outset, the Board notes that Board decisions are not precedential. Further, the maps and photographs submitted do not provide sufficient evidence to determine that the Veteran in this case was exposed to herbicides sufficient to warrant presumptive service connection. Again, the evidence does not reflect that the Veteran served along the perimeters of the base or otherwise had direct contact with herbicides. Further, secondary exposure to herbicides has also not been recognized. Simply, the evidence provided by the Veteran and his representative is not the most probative of record when contrasted against the findings of JSRRC and CURR. Accordingly, the Board finds that service connection on a presumptive basis due to exposure of herbicide agents is not warranted. 38 C.F.R. §§ 3.307, 3.309. The Board finds that service connection is not otherwise warranted on a direct-incurrence basis. Service treatment records are silent for complaints of, treatment for, or diagnosis of prostate cancer while the Veteran was in active service. There is no indication of prostate cancer until many years following the Veteran's separation from active service, let alone within one year of service discharge. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Indeed, the Veteran himself does not contend that his prostate cancer was as due to a specific in-service event or injury. The Board recognizes the Veteran's contentions that his prostate cancer is related to exposure to herbicides during his period of active duty. However, as noted above, exposure to herbicides has not been established and he has not contended that prostate cancer is otherwise related to service. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. Davidson v. Shinseki¸581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As to a nexus opinion relating any disability to exposure to herbicides, the Board finds that the etiology of the Veteran's prostate cancer is a complex medical question. The Veteran has not been shown to possess medical knowledge or expertise and he is therefore not competent to provide opinions as to the etiology of the disability. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for prostate cancer is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App 49, 53-56 (1990). ORDER Entitlement to service connection for prostate cancer is denied. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs