Citation Nr: 1757772 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-38 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. 2. Entitlement to service connection for lung cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Air Force from August 1965 to January 1969. This appeal arises before the Board of Veterans' Appeals (Board) from a February 2010 rating decision in which the Department of Veteran Affairs (VA) Muskogee, Oklahoma, Regional Office (RO) denied entitlement to service connection for prostate cancer and entitlement to service connection for lung cancer. The Board has previously remanded in August 2014 and November 2016 for further development. In September 2012, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. FINDINGS OF FACT 1. The Veteran was diagnosed with prostate cancer, and the Veteran's duties at Korat Royal Thai Air Force Base (RTAFB) as likely as not placed him near the perimeter of the base, and herbicide exposure may be presumed. 2. The Veteran was diagnosed with lung cancer, and the Veteran's duties at Korat Royal Thai Air Force Base as likely as not placed him near the perimeter of the base, and herbicide exposure may be presumed. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for establishing service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309 (2017). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for establishing service connection for lung cancer have been met. 38 U.S.C. §§ 1110, 1116, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372. 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, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). If the Veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases which are listed at 38 C.F.R. § 3.309(e) (2017), if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. § 3.307(d) (2017). In essence, if the Veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea, in or near the DMZ, between April 1, 1968 and August 31, 1971, actual exposure to herbicides must be verified through appropriate service department records or other sources for the presumption of service connection for a herbicide-related disease to be applicable. Otherwise, exposure to herbicides is not presumed. However, if actual exposure to herbicides has been established, the presumption of service connection found in 38 C.F.R. § 3.309(e) (2017) for herbicide-related diseases is applicable. In addition to exposure within the Republic of Vietnam, exposure to Agent Orange has been noted to have occurred in various places, including Thailand. VA has determined that U.S. Air Force Veterans who served on RTAFBs at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. Particularly, to benefit from the presumption of herbicide exposure at one of the above listed air bases, a Veteran must have served 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, performance evaluation, or other credible evidence. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). The Veteran contends that he has prostate cancer and lung cancer based on his military service. Specifically, the Veteran asserts that his prostate cancer and lung cancer are a result of exposure to herbicides. Turning to the record of evidence, an August 2008 private medical record indicates that the Veteran was diagnosed with prostate cancer. A January 1990 private medical record indicates that the Veteran was diagnosed with lung cancer in December 1989. The record indicates that the Veteran received ongoing treatment for these conditions. Therefore, the first element of service connection has been met for both disabilities. The Veteran's service personnel records reflect that he served in Thailand at the Korat RTAFB from March 1967 to March 1968, a period covered by the VA-designated timeframe for which herbicide exposure may be presumed. His military occupational specialty (MOS) is listed as a weapons mechanic. A Performance Report pertaining to his period of service at Korat RTAFB indicated that his current duty was weapons load crew member. While the Veteran has asserted that en route to his final destination of Thailand, he landed in Saigon, there is insufficient evidence of record to confirm that the Veteran had feet on the ground in the Republic of Vietnam. Thus, the remaining critical element as to whether the Veteran is entitled to the presumption of herbicide exposure is whether he served along the perimeter of the Korat RTAFB. A VA Memorandum of Record received in October 2009 states that while the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters. Therefore, if a Veteran's MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. In a February 2010 Notice of Disagreement, the Veteran stated that when he was stationed in Korat, Thailand, Agent Orange or some kind of defoliant was used at the base on the fence line and surrounding the base. In a June 2012 brief, the Veteran, through his representative, asserted that his duties on the weapons load crewmember would have routinely placed him in open areas near the perimeter of the base. The Veteran has stated, and his service personnel records verify that, while stationed in Thailand, he worked as a weapons load crew member. The Veteran asserts that he was on the flight line of Korat due to his duties, which included loads, down-loads and maintenance of F-105 aircraft weapons systems, installation of pylons, missile adapters and launchers, and release and launch systems checks of assigned aircraft in accordance with Air Force technical orders and local directives. The Board notes that the RO has not been able to corroborate the Veteran's testimony that his responsibilities took him to the perimeter of the base; however, there is no basis in the record to question the Veteran's credibility regarding his statements as to the nature and responsibility of his service while at Korat RTAFB. The Veteran's statements indicate that he regularly had contact with the flight line. This description appears to be consistent with the duties of his military occupational specialty. 38 U.S.C. § 1154(a) (2012). Moreover, his accounting as to the type of duties he performed within the perimeter of Korat RTAFB are deemed competent lay evidence of what the Veteran 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). Upon review of the record, there is no evidence available that would refute the Veteran's recollections. Therefore, based on his credible assertion of serving along the perimeter of Korat RTAFB, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is presumed to have been exposed to herbicide agents during active service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017). As the Veteran is now presumed to have been exposed to herbicide agents in service, and prostate cancer and lung cancer are diseases that have been shown to be associated with exposure to herbicide agents, it is presumed that these disorders were incurred in service even without evidence of those diseases during service. See 38 U.S.C. § 1116(a); 38 C.F.R. § § 3.307(a)(6), 3.309(e). As such, service connection for prostate cancer and lung cancer, as due to herbicide exposure, is warranted. ORDER Entitlement to service connection for prostate cancer, as due to exposure to herbicide, is granted. Entitlement to service connection for lung cancer, as due to exposure to herbicide, is granted. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs