Citation Nr: 1729178 Decision Date: 07/25/17 Archive Date: 08/04/17 DOCKET NO. 13-35 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus, to include as due to Agent Orange exposure on a presumptive basis. 2. Entitlement to service connection for ischemic heart disease, to include as due to Agent Orange exposure on a presumptive basis. 3. Entitlement to service connection for prostate cancer, to include as due to Agent Orange exposure on a presumptive basis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Josey, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from February 1958 to March 1974, including service in Thailand. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran was scheduled for a hearing before a Veterans Law Judge (VLJ) in April 2015. In March 2015, VA received written notice of the Veteran's intent to withdraw his request for a hearing. This case was previously before the Board in July 2015, when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board at this time for further appellate review. 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 is shown to have diagnoses of type II diabetes mellitus, ischemic heart disease, and prostate cancer. 2. The Veteran had service at Korat Royal Thai Air Force Base (Korat) from January 1968 through at least January 1969, and at Don Muang Airport (Don Muang) in Thailand, at least from March 1972 to October 1972. 3. Resolving reasonable doubt in the Veteran's favor, during his service at Korat and Don Muang, the Veteran's duties brought him in contact with the perimeter of at least one of those facilities; as such, the Veteran's exposure to herbicide agents during his period of active service is conceded. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for establishing service connection for ischemic heart disease have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for establishing service connection for prostate cancer have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence of (1) a current disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, VA regulations provide that, for a veteran who has been exposed to an herbicide agent during military service, service connection for certain enumerated diseases will be presumed. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). This exposure presumption includes veterans who served near the air base perimeter at Royal Thai Air Force Bases, including Korat and Don Muang, during the Vietnam era, February 1961 to May 1975. VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chapter 1, Section H.5.b. Service near the air base perimeter can be established using the veteran's military occupational specialty designation or evidence of daily work duties, performance evaluation reports, or other credible evidence. Id. VA regulations also provide that veterans who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era will be presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(v). "Regularly and repeatedly operated, maintained, or served onboard C-123 aircraft" means the veteran was assigned to a squadron permanently assigned one of the affected aircraft and the veteran had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Id. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks service connection for type II diabetes mellitus, ischemic heart disease, and prostate cancer, which are all among the disabilities enumerated in section 3.309(e). The Veteran's diagnoses for type II diabetes mellitus, ischemic heart disease, and prostate cancer are well documented in the record in both VA and private treatment records. None of these diagnoses were made during service, and the Veteran's service treatment records do not indicate that these disabilities had developed during service. He was diagnosed with type II diabetes mellitus in 2002 and with prostate cancer in March 2010; his heart conditions began in 1979. Accordingly, service connection on a direct basis is not warranted. The Board acknowledges that the Veteran's brother submitted a lay statement in April 2016 asserting that he saw the Veteran in the mess hall at Da Nang Air Force Base when the Veteran touched down in Vietnam on his way home. The Veteran made a similar assertion that he landed in Vietnam in a February 2013 statement. However, there is no other evidence corroborating this statement, such as travel orders or other personnel documents, so the Veteran's presence in Vietnam cannot be verified. Similarly, the Veteran stated in the November 2013 VA Form 9 that he was sent on temporary duty to set up temporary fuel stations, but he did not name the locations of those fuel stations or the air base from which he was sent. Further, the Board's previous remand directed the RO to determine whether the Veteran serviced Operation Ranch Hand (ORH) C-123 aircraft during his military service, which are affected aircraft under the regulation. The RO determined that the Veteran was stationed at one air base, Lockbourne Air Force Base, where ORH C-123 aircraft were stationed while the Veteran was present. However, the Veteran's assigned squadron, the 317th Air Lift Group, was not recorded as having operated or maintained the ORH C-123 aircraft, and he thus was not found to have regularly and repeatedly operated or maintained affected aircraft under the regulation. Therefore, this case turns on whether the Veteran was exposed to herbicide agents as a result of his military service in Thailand. The Veteran was stationed at Korat and Don Muang during the Vietnam era. The Veteran asserted in a February 2014 written statement that his daily work duties at Korat included issuing diesel fuel to the outskirts of the base to all emergency generators and "amo dump." In an August 2015 written statement, the Veteran stated that he re-fueled and serviced all aircraft that landed at Korat, including aircraft that had been in Vietnam. Two performance evaluations from the Veteran's assignment at Korat reflect these statements. An August 1968 evaluation noted that the Veteran was "extremely effective in accommodating all requests for servicings of approximately 70 diesel and mogas runs daily." A January 1969 evaluation described his duty as a mobile refueling unit operator in part as supervising and controlling "fuel handling operations in direct support of aircraft." The August 1968 evaluation further reflected that the Veteran "worked untiringly in driving heavy equipment off from hard-surfaced roads to service remote areas with ground fuels." The Board also notes that one of the two operational aprons at Korat was adjacent to the perimeter of the air base, as was the tank farm. At Don Muang, the Veteran's October 1972 performance evaluation reflected that he contributed to successful fuel support of the Tiger Cub Tanker Task Force operations at that air base. The Board notes that, in 1972, Don Muang housed tankers that refueled fighter aircraft engaged in combat operations in Vietnam. Although the Board acknowledges the AOJ's September 2011 administrative finding that the Veteran did not meet the criteria for exposure to herbicides, it focuses solely on the Veteran's presence in Vietnam and does not address whether his duties at Korat or Don Muang regularly placed him near the perimeter of either of those air bases. The June 2011 administrative finding similarly disregards the question of exposure in Thailand, finding only that the National Personnel Records Center was unable to verify in-country service in the Republic of Vietnam. In this case, the Veteran has competently and credibly reported that his work duties as a mobile fuel unit operator at Korat brought him in frequent contact with the perimeter in order to service emergency generators on the outskirts of the base. While some of his other duties servicing aircraft at both air bases might have also exposed him to Agent Orange or other herbicides, his performance evaluation corroborated that the Veteran regularly drove heavy equipment off hard-surfaced roads to service remote areas of Korat. Accordingly, the Board finds, after resolving any reasonable doubt in favor of the Veteran, that the evidence in this case demonstrates that the types, places, and circumstances of the Veteran's military service are consistent with bringing him "near the air base perimeter" at Korat during his period of service at that air base. See 38 U.S.C.A. § 1154(a). The Veteran's claims for service connection for type II diabetes mellitus, ischemic heart disease, and prostate cancer are granted on a presumptive basis in this case, as the Veteran's exposure to herbicide agents at Korat has been conceded. See 38 C.F.R. §§ 3.307, 3.309; see also M21-1MR, Part IV, Subpart ii, Chapter 1, Section H.5.b. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for type II diabetes mellitus is granted. Service connection for ischemic heart disease is granted. Service connection for prostate cancer is granted. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs