Citation Nr: 1716292 Decision Date: 05/15/17 Archive Date: 05/22/17 DOCKET NO. 12-35 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the Army from September 1960 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran was not actually or presumed to have been exposed to designated herbicide agents. 2. The Veteran's prostate cancer is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The Veteran's prostate cancer was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for service connection for prostate cancer, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016). The Board finds that a July 2008 notice letter fully satisfied VA's duty to notify the Veteran. See 38 U.S.C.A. § 5103(a). The Board also finds that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records are all in the claims file. The Veteran has not identified any outstanding records for VA to obtain. VA's duty to assist generally includes the duty to provide a VA examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2016); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that the Veteran has not been provided with a VA examination relating to his claim. The Board finds, however, that because there is no competent and credible evidence tending to indicate that the Veteran's prostate cancer is related to his active service, there is no duty to provide a VA examination. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010); Duenas v. Principi, 18 Vet. App. 512 (2004). While the Board acknowledges that the Veteran has alleged herbicide exposure in service, as explained in detail below, the Board has found that the presumption of herbicide exposure does not apply in this case. Although the Veteran is competent to report is observations of the landscape and the activities that he witnessed, the Board will find below that his reports warrant very low probative weight as they are inconsistent with all authoritative documents and research of record and that actual herbicide exposure has not otherwise been established. Moreover, the Veteran does not contend and the record does not show the onset of any manifestations of the disease during service. Without a finding of actual herbicide exposure, and without presumed herbicide exposure, there is no evidence tending to link the Veteran's prostate cancer to his service and, therefore, no VA examination is required. Neither the Veteran nor his representative identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Therefore, for the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). To establish service connection, the evidence generally must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran served on active duty in the Army from September 1960 to August 1963, including service in Thailand from April 1962 to August 1962. See DD Form 214; Personnel records, received October 1999 at p.7. His military occupational specialty was heavy weapons infantryman. He claims that he has prostate cancer due to herbicide exposure in Thailand. As an initial matter, the Veteran's VA treatment records show that he was diagnosed with prostate cancer and underwent a prostatectomy in 2004. See VA treatment records, received December 2014 at p.17 of 789. 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 an 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.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2016). "Herbicide agent" is defined by VA regulations to include 2,4-D, 2,4,5-T and its contaminant TCDD, cacodylic acid, and picloram. See 38 C.F.R. § 3.307(a)(6)(i). The herbicide commonly referred to as "Agent Orange" was a mixture of 2,4-D and 2,4,5-T. The 2,4,5-T used to make Agent Orange was contaminated by TCDD. See, e.g., In re "Agent Orange" Product Liability Litigation, 517 F.3d 76 (2d Cir. 2008). In the case of certain herbicide exposed veterans, service connection may be presumed for those diseases listed in 38 C.F.R. § 3.309(e), including prostate cancer. See also 38 U.S.C.A. § 1116 (West 2014). In this case, the Veteran has not alleged service in the Republic of Vietnam, and there is otherwise no evidence that he served there. Therefore, herbicide exposure may not be presumed. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran is not precluded, however, from proving actual exposure. See Combee v. Brown, 5 Vet. App. 248 (1993). Rather, as noted above, it is the Veteran's primary contention that he was exposed to herbicides in Thailand between April 1962 and August 1962. He reports that his service was as an adviser to Thai soldiers and police patrolling the boundaries with adjacent countries. His duties included river patrol in Thailand where he witnessed herbicides being used, saw defoliated areas, and he asserts that herbicides ran off into the rivers causing further exposure. See Statement, July 2008; Form 9, December 2012. His service personnel records show that he served in Korat, Thailand. See Personnel records, received October 1999 at p.7. He also asserts that he served in Ubon. See Form 9, December 2012. However, none of the duties refer to participating in air base security or operations along the perimeter of the air bases. Rather, all activities reported by the Veteran occurred off bases in the field in support of Thai ground forces. In November 2008, the Veteran submitted excerpt from a document entitled "Herbicide Operations in Southeast Asia July 1961 -June 1967" and contended that he was present in the "locals" mentioned in the document. The pages provided primarily document herbicide dispersion activities in the Republic of Vietnam with one mention of aerial spraying in Thailand from August to September 1963, after the Veteran's service in Thailand. The VA Adjudication Procedures manual, the M21-1, provides that "Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them at or near the perimeters of Thailand military bases." See IV.ii.1.H.5.a. With regard to U.S. Air Force veterans, the M21-1 provides that herbicide exposure may be conceded on a facts-found basis if the veteran served at one of the listed Royal Thai Air Force Bases (RTAFBs) during the Vietnam era as a 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. See M21-1, IV.ii.1.H.5.b. For U.S. Army veterans who served at RTAFBs during the Vietnam era, the M21-1 provides that herbicide exposure may be conceded on a facts-found basis if the veteran provides a statement that he or she was involved in perimeter security duty, and there is additional credible evidence supporting this statement. For U.S. Army veterans who served at a U.S. Army base in Thailand during the Vietnam era, the M21-1 provides that herbicide exposure may be conceded on a facts-found basis if the veteran served as a member of the military police unit, or with a military police occupational specialty. Otherwise, the M21-1 directs that the Veteran should be asked for the approximate dates, location, and nature of alleged exposure, and if sufficient information is received, a request should be sent to JSRRC for verification of exposure to herbicides. See M21-1, IV.ii.1.H.5.b. In July 2008, the RO asked the Veteran for the dates, location, and nature of alleged exposure. See M21-1, IV.ii.1.H.5.b. While the Board acknowledges the Veteran's subsequent statements in support of his claim, he was not able to provide the dates and locations. Therefore, as directed in the M21-1, the case was referred to the JSRRC coordinator, who prepared July 2009 and June 2016 formal findings that the Veteran had not provided sufficient information for corroboration of the alleged herbicide exposure by JSRRC. The June 2016 memorandum further noted that internal VA documents only showed limited testing of Agent Orange in Thailand in 1964, which was after the Veteran's service in Thailand in 1962. Included with the July 2009 JSRRC coordinator's memorandum was the VA memorandum entitled "Herbicide Use in Thailand During the Vietnam Era" (previously associated with Fast Letter 09-20 prior to incorporation into the M21-1), which provides that VA had reviewed a DOD list of locations where tactical herbicides such as Agent Orange were used, and that tactical herbicides were used in Thailand only from April 2, 1964, to September 8, 1964 at the Pranburi Military Reservation, which was not near any U.S. military installation or RTAFB. The memo further notes that VA received a letter from the Department of the Air Force stating that, other than the 1964 tests on the Pranburi Military Reservation, there are no records of tactical herbicide storage or use in Thailand. Additionally, the memorandum noted that the CHECO Report does not report the use of any tactical herbicides on allied bases in Thailand, although it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters and, therefore, if a veteran's military occupational specialty was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial herbicides. In this particular case, the Veteran's personnel records show he served as a heavy weapons infantryman, and that he served in Korat. The Board does acknowledge that the Veteran also alleges he served at Ubon. While both of these locations have RTAFBs listed in the M21-1, the Veteran has not provided a statement that he was involved in perimeter duties. Therefore, herbicide exposure may not be conceded under the M21-1 provisions, and the Board finds that actual exposure has not otherwise been established. See M21-1, IV.ii.1.H.5.b; Combee, supra. With regard to whether there is otherwise evidence of a link between the Veteran's prostate cancer and his active service (other than due to herbicide exposure), the Veteran's service treatment records show no notations regarding any prostate condition or urinary troubles. No complaint is shown on his June 1963 separation examination report, and he denied frequent urination on his June 1963 separation report of medical history. See STRs, received May 1975 at p.16-19 of 29. VA treatment records show that he was diagnosed with elevated PSA in March 2003, and subsequently underwent a prostatectomy for diagnosed carcinoma of the prostate in 2004. See VA treatment records, received December 2014 at p. 559, 580, 619, 661 of 789. There is no medical evidence tending to link the Veteran's prostate cancer to his active service. Therefore, the Board finds that the preponderance of the evidence is against finding that the Veteran's prostate cancer is otherwise related to his active service. The Board acknowledges the Veteran's apparently sincere belief that he may have been exposed to herbicides such as Agent Orange during his service in Thailand. As explained above, however, there is no documentary evidence of the use of any tactical herbicides in Thailand other than in 1963 and 1964, which was after his service in Thailand, and which was not in Korat or Ubon. He has not alleged his duties took him to the perimeter of any RTAFB. Also, he is not provided any more specific information so as to identify the specific herbicide that he alleges was used, or the location or dates. The Board also notes again that, as explained above, VA regulations provide that service connection for prostate cancer may be presumed only in the case of veterans who were exposed to those specific herbicides listed in 38 C.F.R. § 3.307(a)(6)(i). In light of all the discussion herein, the Board ultimately finds that herbicide exposure has not been established and may not be conceded under the M21-1 provisions relating to Thailand veterans. In summary, the Board concludes that the preponderance of the evidence is against finding service connection for prostate cancer, to include as due to herbicide exposure. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for prostate cancer is denied. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs