Citation Nr: 1757212 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 10-18 348A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for prostate cancer due to herbicide agent exposure. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1970 to March 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2016, the Board denied the Veteran's claim for service connection for prostate cancer due to herbicide exposure in Thailand. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In May 2017, the Court granted a Joint Motion for Remand (JMR), thereby vacating the Board's denial and remanding the issue for action consistent with the terms of the JMR. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, he was exposed to herbicide agents while he was stationed in Thailand. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer as due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.309(e) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA applies to this claim. Because the benefit is granted, there is no reason to belabor the impact of the VCAA; any notice error or duty to assist omission is harmless. Legal Criteria The law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, including prostate cancer, even if there is no record of evidence of such disease during the period of service. 38 C.F.R. 3.309(e) (2017). There are no regulatory or statutory presumptions regarding herbicide agent exposure in Thailand. However, VA extends special consideration to reports of herbicide agent exposure on a factual basis to veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era, specifically the Royal Thai Air Force Bases (RTAFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. The duties that are considered to have placed veterans on or near the perimeter include security policeman, security patrol dog handlers, members of the security police squadron, or those who are otherwise shown to have served near the air base perimeter as evidenced by their military occupational specialty (MOS), daily work duties, performance evaluations, and other credible evidence. See M21-1, Part IV, Subpart ii, Chapter 1.H.5(a), (b). Factual Background and Analysis The Veteran's 2009 prostate cancer diagnosis is shown in an October 2015VA examination. The October 2015 VA examiner provided a negative nexus opinion as to whether the Veteran's service (other than the herbicide agent exposure primarily at issue here) caused his prostate cancer. Therefore, the crucial question before the Board is whether the evidence supports an award of service connection due to herbicide agent exposure during the Veteran's service in Thailand. Service personnel records indicate the Veteran served in Thailand from September 1970 to October 1971 including at Camp Vayama and Base U-Tapao. In April 2016, the Board denied his claim because the RO was unable to confirm exposure to herbicide agent exposure; however, as noted by the Court's May 2017 JMR, the RO erred by only searching the relevant database for a several month period in 1970, rather than for the Veteran's entire 11 months in Thailand. On re-examination of the record, the Board finds that the Veteran provided competent and credible evidence that he cross-trained as an ammunition storage clerk, and that in this capacity he served near the perimeters of both Camp Vayama and U-Tapao, Thailand. In a March 2011 statement, he asserted that he was first stationed at Camp Vayama until it was turned over to the Thai Air Force. From there, he was sent to Camp Samae San. During his time in Thailand, he made several trips to many different military bases to include Nakorn Phanom Air Base, Udorn, and U-Tapao. He asserted he traveled a lot transporting military supplies and that 90 percent of his duties included perimeter guard and duty watching over an ammo pad. He indicated he worked alongside military police and Thai security personnel, performing the same job guarding the perimeters in the same places as military police. The evidence also includes a recently declassified Department of Defense report written in 1973, "Project Checo Southeast Asia Report: Base Defense in Thailand 1968-1972," that describes significant use of herbicides on the fenced-in perimeters of military bases in Thailand to remove foliage that provided cover for enemy forces. VA determined that herbicides used on the Thailand base perimeters may have been tactical and procured from Vietnam, or a strong, commercial type resembling tactical herbicides. In addition, the Veteran submitted supportive evidence including base maps showing his duty stations near the perimeters and another servicemember's affidavit describing base geography. Resolving reasonable doubt in the Veteran's favor (as mandated by law under 38 C.F.R. § 3.102), the Board finds that the competent evidence of record reasonably supports his claim that he worked near the perimeters of Camp Vayama and Base U-Tapao, Thailand. Accordingly, the Board finds that the Veteran was exposed to herbicide agents while he was stationed in Thailand. Because the Veteran has been diagnosed with a disease listed under 38 C.F.R. § 3.309 (e) and has also been exposed to herbicide agents while in service, service connection for prostate cancer is presumed and warranted. ORDER Entitlement to service connection for prostate cancer is granted. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs