Citation Nr: 1803553 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 12-15 693 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for the residuals of prostate cancer, to include as a result of herbicide exposure. 2. Entitlement to service connection for a heart disorder, to include as a result of herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1966 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue of entitlement to service connection for a heart disorder, to include as a result of herbicide exposure, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The credible evidence of record demonstrates that the Veteran served in Thailand during the Vietnam Era at a Royal Thai Air Force Bases in Nakhon Phanom with daily work duties near the air base perimeter; his exposure to herbicide agents is conceded. 2. The Veteran's prostate cancer is not shown to have developed as a result of an intercurrent cause and is presumed to have been incurred as a result of service. CONCLUSION OF LAW The criteria for service connection for prostate cancer as a result of herbicide exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Claim Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including malignant tumors, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). But see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain disorders, including prostate cancer, if manifest to a degree of 10 percent or more for an herbicide exposed veteran may be presumed service connected. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. 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, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). Generally, veterans diagnosed with an enumerated disease who served in the Republic of Vietnam, near the Korean demilitarized zone (DMZ) in areas where herbicides were known to have been applied, or 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 shall be presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6). VA has also administratively acknowledged herbicide use in Thailand and storage on Johnston Island and has established special consideration and procedures for claims based on herbicide exposure in those locations. See M21-1, IV.ii.1.H (M21-1). Generally, upon receipt of credible evidence of such service a detailed statement of the Veteran's claimed herbicide exposure be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. See VBA Fast Letter 09-20 (May 6, 2009). The M21-1 also specifies when herbicide exposure may be conceded in certain cases where the Veteran served in Thailand during the Vietnam era. Herbicide exposure may be conceded on a direct/facts-found basis if a Veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases (RTAFBs), to include Nakhon Phanom, as an Air Force 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. Additionally, the Veterans Benefits Administration (VBA), Compensation & Pension (C&P) Service issued a "Memorandum for the Record" on herbicide use in Thailand during the Vietnam Era noting the Department of Defense (DoD) reported that only limited testing of tactical herbicides was conducted in Thailand from April 2, 1964, to September 8, 1964, and specifically identified that location as the Pranburi Military Reservation. The Memorandum noted that tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand. A letter from the Department of the Air Force indicated that, other than the 1964 tests on the Pranburi Military Reservation, there were no records of tactical herbicide storage or use in Thailand. However, there were records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer (BCE). The Memorandum noted that in Vietnam, tactical herbicides were aerially applied by aircraft in "Operation RANCH HAND" or by helicopters under the control of the U.S. Army Chemical Corps; however, the BCE were not permitted to purchase or apply tactical herbicides. It was noted that there were no records of tactical herbicide spraying by RANCH HAND or aircraft in Thailand after 1964, and that RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand. However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from August 30, 1963, to September 16, 1963, and from October 14, 1966, to October 17, 1966. Also, the Memorandum reviewed the Project CHECO Southeast Asia Report: Base Defense in Thailand produced during the Vietnam era. While the Report did not discuss the use of tactical herbicides on allied bases in Thailand, it did indicate sporadic use of non-tactical, or commercial, herbicides within fenced perimeters. The Memorandum determined, therefore, that if a Veteran's MOS or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. Security police units, as those known to have walked the perimeters, especially dog handlers were specifically identified. The Memorandum states that unless the Veteran's assertion is inherently incredible, clearly lacks merit, or there is no reasonable possibility that further VA assistance would substantiate the claim, a request should be made to the JSRRC to attempt to corroborate the Veteran's assertion. Even though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disability is not included as a presumptive disability, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred during service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2017). The Veteran contends that he has prostate cancer as a result of active service. In statements and testimony he reported was exposed to Agent Orange while stationed at Nakhon Phanom RTAFB from February 1968 to February 1969. He provided a copy of an article asserting that herbicides had been used on his base. While acknowledges that his primary duties were as an administrative specialist, he described actual exposure to the base perimeter as a result of his duties around aircraft and his travels off base. He also described having to perform security duties, which involved patrolling the perimeter. There is nothing in the record that necessarily refutes these assertions. Records show the Veteran participated in the Vietnam Air Offensive Campaign, Phase II, during the period from March 1967 to March 1968. Performance reports for the periods from December 1967 to December 1968 noted the Veteran's duties in Thailand were as an administrative specialist preparing correspondence, maintaining correspondence files, and distributing all non-technical information. There was no indication of duties along the base perimeter or in security. An August 2011 VA Memorandum noted a JSRRC coordinator had reviewed all of the Veteran's records and determined that it could not be determined whether he had service in Vietnam nor confirmed that he was exposed to Agent Orange. VA found that it could not confirm that his duties placed him on or near the perimeters of Thailand military bases and exposed him to Agent Orange. Further attempts to prove this were considered to be futile. Private medical records show the Veteran received a diagnosis of prostate cancer in May 2007 and underwent a radial retropubic prostatectomy in November 2007. Reports include diagnoses of prostate cancer without additional opinion as to etiology. No opinion has been obtained with respect to its etiology. Based upon a comprehensive review of the record, the Board finds that credible evidence of record demonstrates that the Veteran served in Thailand during the Vietnam Era at a RTAFB in Nakhon Phanom with daily work duties near the air base perimeter and his exposure to herbicide agents is conceded. Although the JSRRC found it could not be confirmed that the Veteran's duties placed him on or near the perimeters of Nakhon Phanom, the Veteran's statements that his regular duties included security and other activities placing him near the base perimeter to be credible and consistent with the circumstances of his service. Further, as indicated, a diagnosis of prostate cancer has been established. The Veteran's prostate cancer is not shown to have developed as a result of an intercurrent cause and is presumed to have been incurred as a result of service. Therefore, entitlement to service connection for the residuals of prostate cancer is granted. ORDER Entitlement to service connection for the residuals of prostate cancer as a result of herbicide exposure is granted. REMAND Additional development is required for an adequate determination as to the issue for entitlement to service connection for a heart disorder. Recent records show a diagnosis of hypertensive heart disease as opposed to ischemic heart disease, which is presumed to be related to herbicide agent exposure. In any event, the Veteran contends his current heart disability is related to his active service including as a result of herbicide agent exposure. In correspondence received in April 2011, he alternately asserts his heart disorder developed as a result of his treatment with Darvon during active service. He also provided a copy of internet-source information in support of this claim in December 2010. Service treatment records dated in December 1970 noted he was prescribed Darvon and a February 1976 report noted he reported he was allergic to Darvon. This matter has not been addressed by VA examination. VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Here, the Board finds a VA medical examination is required. Prior to examination, any pertinent VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all pertinent VA medical records not yet associated with the appellate record. 2. Schedule the Veteran for an appropriate VA examination for an opinion as to the nature and etiology of the Veteran's claimed heart disorder. Following review of the record, interview of the Veteran, and physical examination, the examiner should address the following questions: a. Identify/diagnose any heart disorder that presently exists or that has existed during the pendency of the appeal. The examiner should specifically state whether the Veteran has or has had a diagnosis of ischemic heart disease. b. For any disability other than ischemic heart disease, state whether it is at least as likely as not (50 percent probability or greater) that the heart disorder that: i. had its onset in service, or ii. is etiologically related to his active service, including as a result of treatment with Darvon documented in December 1970 or his exposure to herbicide agents such as Agent Orange. The examiner must acknowledge review of the pertinent evidence of record. All necessary examinations, tests, and studies should be conducted. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. 3. Thereafter, the AOJ should address the issue remaining on appeal. If the benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs