Citation Nr: 1803248 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-08 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for prostate cancer, as due to exposure to herbicides. 2. Entitlement to service connection for a urinary problem, as secondary to prostate cancer. 3. Entitlement to service connection for erectile dysfunction, as secondary to prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2017 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. FINDINGS OF FACTS 1. Resolving all reasonable doubt in favor of the Veteran, exposure to herbicides at U-Tapao Royal Thai Air Force (RTAF) in Thailand has been established. 2. The Veteran has a diagnosis of prostate cancer, which is presumed related to his in-service herbicide exposure. 3. Resolving all reasonable doubt in favor of the Veteran, urinary incontinence is related to his prostate cancer. 4. The medical opinion evidence relates the Veteran's erectile dysfunction to his prostate cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer, as due to exposure to herbicides, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for urinary incontinence, as secondary to service-connected prostate cancer, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. 3.102, 3.303, 3.310 (2017). 3. The criteria for service connection for erectile dysfunction, as secondary to service-connected prostate cancer, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017). VA has established a presumption of service connection for certain diseases found to be associated with herbicide exposure, including prostate cancer. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). Absent affirmative evidence to the contrary, diseases on the presumptive list such as prostate cancer will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. Id.; 38 C.F.R. § 3.307(d). The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the Vietnam Era), specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). The United States Department of Defense has confirmed that herbicides were used within the Thailand bases to control weeds from February 28, 1961, to May 7, 1975, at base perimeters. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (AFB) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. If a veteran served on one of these air bases 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 MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. Id. This applies only during the Vietnam Era. Id. In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Prostate Cancer The Veteran contends that his prostate cancer is due to exposure to Agent Orange during service in Thailand, such that presumptive service connection is warranted. Initially, the Board notes that the Veteran has diagnoses of prostate cancer. The Veteran's service personnel records show that he was stationed with the at U-Tapao Royal Thai Air Force Base (RTAFB), Thailand from December 1966 to December 1967. The Veteran's DD-214 reflects his military occupational specialties (MOS) was a cook. During his October 2017 hearing, the Veteran said that while he was stationed at U-Tapao, he delivered food and supplies throughout the base, including specifically to the guards at the perimeter of the base. He testified that the supply warehouse was near the perimeter of the base. He recalled having to go off base in order to go for supplies. He further described construction occurring while he was on the base which included clearing the perimeter of the base. The Board notes that the RO attempted to verify the Veteran's herbicide exposure. In October 2011, a VA memorandum indicated the request was incomplete as there was insufficient information to search for the record. However, the Board is ultimately persuaded by the Veteran's competent testimony describing his in-service experiences. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Despite the fact that there is no clear evidence of herbicide exposure due to his Thailand service shown in the record, the Veteran's self-reports of his work obligations, which required him to be exposed to the perimeter and the reports of construction on the perimeter of the base during his service at the base are facts consistent with the circumstances and conditions of his service at the U-Tapao AFB in Thailand during the Vietnam era. The evidence of record clearly establishes that the Veteran had service at one of the designated Thailand military bases. 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. Further, he has provided competent testimony that establishes service near the base perimeter and the Board finds that such to be consistent with the circumstances, places, and types of his service. There is no evidence in the file to doubt these statements and so the Board finds the Veteran's account of herbicide exposure during service to be credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Resolving doubt in the Veteran's favor, this evidence establishes on a facts-found basis that the Veteran was exposed to herbicides while serving at U-Tapao RTAFB. See M21-1, Part IV, Subpart ii, Chapter 1, Section H.5.b. Given the above, the Board concludes that the Veteran is entitled to presumptions based on exposure to herbicides. See 38 C.F.R. §§ 3.307, 3.309 (2017). Because prostate cancer is a condition for which service connection can be granted on a presumptive basis when exposure to herbicides is established, entitlement to service connection for prostate cancer is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Urinary and Erectile Dysfunction The Veteran contends his urinary and erectile dysfunction are as a result of his prostate cancer, and, as such, warrant service connection secondary to those conditions. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused by or aggravated by a service-connected disability. In July 2011, a VA examination diagnosed the Veteran with erectile dysfunction and stated that the erectile dysfunction was most likely a result of his prostate cancer. Accordingly, service connection for erectile dysfunction as secondary to the now service connected prostate cancer is warranted. In his October 2017 hearing testimony, the Veteran stated that he has urgency of urination and urinary incontinence. The Board finds that the Veteran is competent to provide evidence regarding his urinary dysfunction that he experienced as those symptoms - frequency and incontinence - are apparent to the Veteran and experienced through his senses. Lay testimony is competent when it concerns the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159 (a)(2) (2017). Here, it is clear that the Veteran's urinary dysfunction was such that it was readily observable by the Veteran and experienced through the Veteran's senses. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that a grant of service connection for urinary incontinence, as secondary to his prostate cancer, is warranted. ORDER Entitlement to service connection for prostate cancer, as due to exposure to herbicides, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to service connection for urinary incontinence, as secondary to prostate cancer, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to service connection for erectile dysfunction, as secondary to prostate cancer, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs