Citation Nr: 1817163 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 14-34 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for prostate cancer, including as a result of exposure to herbicides (the dioxin in Agent Orange). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to September 1966. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied the Veteran's claim of entitlement to service connection for prostate cancer. In November 2014, in support of his claim, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board - in other words at a "Travel Board" hearing. A transcript of the proceeding is of record. This case was previously before the Board in December 2016, when it was remanded for further development - primarily to confirm whether the Veteran had served in the Republic of Vietnam or elsewhere exposing him to herbicides. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. It is just as likely as not the Veteran was exposed to herbicides during his service in Thailand, even if not also in Vietnam. 2. He has received a diagnosis of prostate cancer - which, absent affirmative evidence to the contrary, is presumptively associated with exposure to herbicides. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran has established his entitlement to service connection for prostate cancer. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 . To establish a right to compensation for a present disability, a veteran 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" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war era (i.e., January 9, 1962 to May 7, 1975) shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). Exposure to herbicide may also be established on a factual basis for veterans whose duties placed them on or near the perimeters of Thailand military bases, including Don Muang Royal Thai Air Force Base (RTAFB), during the Vietnam War. Veterans Benefits Administration (VBA) Manual M21-1, IV.ii.1.H.5. The list of diseases presumptively associated with exposure to certain herbicide agents includes prostate cancer. 38 C.F.R. § 3.309(e). The essential basis of the Veteran's claim is that he was exposed to herbicides (especially the dioxin in Agent Orange) in Vietnam or Thailand and consequently since has developed prostate cancer. There is no disputing the Veteran has prostate cancer. See, e.g., VA Treatment, November 2013. Resolution of this appeal therefore turns, instead, on whether he was exposed to herbicides during his service. If determined he was, then service connection is warranted because of the presumptive correlation between that exposure and eventual development of prostate cancer. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran's service personnel records (SPRs) show he served during the Vietnam era in Thailand at Don Muang RTAFB from September 1965 - September 1966. His military occupational specialty (MOS) was Special Vehicle Repairman. In his Substantive Appeal to the Board (on a VA Form 9), dated in October 2014, the Veteran reported working directly adjacent to the perimeter at the Don Muang RTAFB and working within just a few feet of sprayed vegetation. He submitted a photograph of Don Muang RTAFB indicating the locations of the 6th aerial port office and warehouse; ramp work area, adjacent to the perimeter; and the base perimeter. During his hearing before this Board he testified that he had worked close to the perimeter, only 15 feet away. He also referenced a submitted photograph and identified refueling vehicles in the photograph. He surmised that one could not work on the ramp, itself, and could not work in the building because that was where cargo was going back and forth. Also during the hearing the Veteran testified that he had been to Vietnam three times. He said that, while on route to Thailand from Travis Air Force Base (AFB), they stopped at Saigon in Tan Son Nhut AFB. They were let off the aircraft and "herded into one small, single-level building for a couple of hours." Thereafter, he reported that they were then flown to Bangkok, Thailand, where he was stationed. He explained that, in April 1966, he was sent to Vietnam to provide mechanical assistance on rough terrain fork lifts. He reported that on his return trip to the United States from Thailand he slept through the stop in Vietnam. When resolving all reasonable doubt in his favor, particularly as concerning whether he was exposed to herbicides during his service, the Veteran has established his entitlement to service connection for prostate cancer owing to that exposure to this toxin 38 C.F.R. § 3.102. The Veteran has contended that he had service in the Republic of Vietnam, first because he traveled through Vietnam on his way to and from his post at Don Muang RTAFB. He submitted Continental Airlines flight maps. But responses from the Air Force Historical Research Agency have revealed that it was not an established flight route for contract civilian airlines to stop at both Saigon and Bangkok on one flight. However, it was explained that this was not intended to mean this never happened. Second, the Veteran has reported traveling to Vietnam in April 1966 to provide mechanical assistance on rough terrain fork lifts. However, attempts to obtain morning reports documenting this type of activity have been unsuccessful. The SPRs nonetheless reveal the Veteran served in the Air Force at Don Muang RTAFB. In addition, he has competently and credibly reporting serving near the perimeter of the air base. In a statement from the Air Force Historical Research Agency dated in August 2014, it was noted that Don Muang RTAFB did not have any herbicide spraying. But as already explained the Veterans Benefits Administration (VBA) Manual contrarily indicates that herbicide exposure is conceded on a direct or facts-found basis for Veterans that served in the United States Air Force in Thailand during the Vietnam era at Don Muang RTAFB near the air-base perimeter. Therefore, affording the Veteran the benefit of the doubt, the Board finds that exposure to herbicides has been established on a factual basis. See VBA Manual M21-1, IV.ii.1.H.5. Finally, as the Veteran has been diagnosed with prostate cancer, has been found to have been exposed to herbicides during his service on a factual basis, and since prostate cancer is a disability presumptively associated with exposure to herbicides, service connection for prostate cancer as due to herbicide exposure is granted. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, as explained, this need only be an "as likely as not" proposition, which in this particular instance it is for the reasons and bases discussed. ORDER Service connection for prostate cancer as due to exposure to herbicides is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs