Citation Nr: 1800237	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  13-35 025	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Detroit, Michigan


THE ISSUE

Entitlement to service connection for prostate cancer, claimed as due to exposure to herbicide agents.


REPRESENTATION

Appellant represented by:	Susan Paczak, Attorney


ATTORNEY FOR THE BOARD

C. L. Wasser, Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Navy from November 1969 to November 1973.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 RO decision that determined that new and material evidence had not been submitted to reopen a claim of service connection for prostate cancer.

A Board hearing was initially requested, but the Veteran withdrew his hearing request in October 2015.

Additional evidence was received from the Veteran in December 2015. This evidence is subject to initial review by the Board because the Veteran has not explicitly requested AOJ consideration of this evidence. 38 U.S.C. § 7105(e) (West 2012). In fact his representative waived initial RO review of this evidence.

The Board notes that in a September 2005 rating decision, the RO initially considered and denied the claim for service connection for prostate cancer, and the Veteran did not appeal that decision. In an unappealed March 2009 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim of service connection for prostate cancer. 

Ordinarily, this would mean that these prior decisions have become final and binding on him as to this issue based on the evidence then of record, in turn requiring the submission of new and material evidence to reopen this claim before reconsidering it on its underlying merits. See 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.200, 20.302, 20.1103 (2017). However, since those prior decisions, the Veteran has submitted additional relevant service personnel records that were not of record at the time of the prior rating decisions, reflecting that he had service at U-Tapao Air Force Base (AFB), Thailand.

Governing regulation provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section, which concerns the need to have new and material evidence to reopen the claim under normal circumstances. See 38 C.F.R. § 3.156 (c) (2014). Thus, the Board will reconsider this claim on its merits.


FINDINGS OF FACT

1. The Veteran had active service in Thailand during the Vietnam era; he did not serve in Vietnam, and is not shown to have set foot in Vietnam during the Vietnam era.

2. Resolving all doubt in the Veteran's favor, the Veteran is shown by competent, credible and persuasive evidence to have been exposed to herbicides in service at U-Tapao Royal Thai Air Force Base (RTAFB) in Thailand.


CONCLUSION OF LAW

The Veteran's prostate cancer is presumed to have been incurred in service. 38 U.S.C. §§ 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).  In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with this issue given the fully favorable nature of the Board's decision.

The Veteran seeks service connection for prostate cancer, claimed as due to exposure to an herbicide agent in Thailand during service. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and malignant tumors become manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309.

If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, may be service connected if the requirements of 38 U.S.C. § 1116 (2012) and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service. 38 C.F.R. §§ 3.307 (d), 3.309(e) (2017).

Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii) (2017). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307 (d)(6)(i). In some limited instances, herbicide exposure in Thailand is recognized. See M21-1 Manual, M21-1, Part IV, Subpart ii, 1.H.5.b.

With regard to exposure to herbicides outside of Vietnam, VA's Adjudication Procedures Manual, M-21, states that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of certain Thailand military bases. The M-21 states that if a Veteran served with the Air Force at several Royal Thai Air Force Bases (RTAFBs), including U-Tapao, during the Vietnam Era and was stationed near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, then herbicide exposure should be conceded. M21-1, IV.ii.1.H.5.b.

The Veteran does not contend that he had any service in Vietnam and no such service is shown. Therefore, he is not presumed to have been exposed to an herbicide agent due to service in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309.

Medical records reflect that the Veteran was diagnosed with prostate cancer in 2002, and that he underwent a prostatectomy, with subsequent residuals. Thus, the first element for establishing service connection, a current disability, has been met. The question becomes whether the condition is related to service.

Service treatment records are negative for pertinent abnormalities.

In his original April 2005 claim of service connection for prostate cancer, the Veteran said he had this condition since 2001, and asserted that it was due to dioxin exposure at U-Tapao, Thailand, in December 1972. He has reiterated this assertion during the instant claim. 

In a May 2008 response, the National Personnel Records Center stated that there were no records showing that the Veteran was exposed to herbicides.

In a December 2015 statement, the Veteran said that he was stationed at U-Tapao AFB from December 1972 to approximately February or March 1973, and was a radar technician on an Orion P3 plane. He said he spent hours on the flight line daily, and that the flight line was close to the base perimeter, and that he visited the mess hall which was near the perimeter. He also said that because he was housed off-base, he crossed the base perimeter twice daily. He has submitted photographs and maps of the base and airfield. 

Although the Veteran served in the U.S. Navy, not the U.S. Air Force, service personnel records, recently submitted orders, and travel orders reflect that he was an aircrewman, and was stationed at U-Tapao for periods in 1971 and 1972.

The Board finds that the evidence of record clearly establishes that the Veteran had active service at one of the designated Thailand AFBs. He also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. In statements made in support of the claim, the Veteran stated that his duties placed him near the perimeter of the military base.

The above lay evidence is competent and credible, and there is no directly contradictory evidence. Viewing the evidence of record in a light most favorable to the appellant, the Board finds that this evidence is at least in relative equipoise regarding the Veteran's direct exposure to herbicide agents. The Veteran has presented competent and credible evidence showing that his work duties at U-Tapao AFB frequently placed him at the perimeter of that base. As such, the Board concedes the Veteran's direct exposure to herbicides during his active service in Thailand.

As the Board has conceded exposure to herbicides in Thailand, the Veteran's prostate cancer is presumed to be associated with his in-service herbicide exposure. See 38 C.F.R. § 3.309(e). There is no clear and convincing evidence to rebut this presumption. As a result, the Board finds that the evidence supports a grant of service connection for prostate cancer on a presumptive basis as a result of herbicide exposure.

ORDER

Service connection for prostate cancer is granted.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs