Citation Nr: 18140499 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-44 505 DATE: October 3, 2018 ORDER Entitlement to service connection for prostate cancer residuals is granted. Entitlement to service connection for sleep apnea is granted. FINDINGS OF FACT 1. The Veteran served near the U-Tapao Royal Thai Air Force Base (RTAFB) air base perimeter and provided credible evidence of in-service herbicide agent exposure on a direct/facts-found basis. 2. The Veteran’s sleep apnea is attributable to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer residuals have been met. 38 U.S.C. §§ 1110, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for sleep apnea have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to April 1972. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2017 Board hearing in Washington, D.C. Unfortunately, a transcript of the hearing was not produced, apparently as a result of an audio malfunction. The VLJ did retain handwritten notes from the hearing. While the Veteran expressed interest in a future video conference hearing before the Board in a September 2018 phone call with VA, in light of the full grant of benefits sought on appeal outlined below, there is no prejudice to the Veteran in proceeding with a Board decision at this time, prior to a potential future Board hearing. 1. Entitlement to service connection for prostate cancer residuals Legal Criteria Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain diseases, to include prostate cancer, warrant presumptive service connection for veteran’s who have been exposed to designated herbicide agents during their active service. See 38 C.F.R. §§ 3.307(a), 3.309(e). As will be outlined further below, the primary contention in this appeal has been that the Veteran was exposed to herbicide agents during his active service in Thailand. VA has established a procedure for verifying a veteran’s exposure to herbicide agents in Thailand during the Vietnam Era. See VA Adjudication Procedures Manual, M21-1, Part IV.ii.1.H.5.b (herein M21-1). The M21-1 states that “Compensation Service has determined 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 Thailand military bases.” Under the procedures outlined in the M21-1, if a Veteran served at certain RTAFBs, including U-Tapao RTAFB, during the Vietnam Era 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,” then VA will “concede herbicide exposure on a direct/facts-found basis.” By way of background, a May 2010 VA Compensation and Pension Service Bulletin stated that “[s]pecial consideration of herbicide exposure on a facts found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases” and that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” The Bulletin also stated that VA “has determined that there was significant use of some formulation of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes,” as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” See Compensation and Pension Service Bulletin, May 2010. This report does not distinguish between the designated (tactical) herbicide and commercial herbicide. The Board acknowledges the recent United States Court of Appeals for Veterans Claims (Court) case of Overton v. Wilkie, No. 17-0125 (2018). The Court stated that: the Court holds that when relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses. If after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. The Board may not simply rely on the nonbinding M21-1 position without analysis. The Board has independently reviewed the M21-1 provisions applicable in this case regarding Thailand and herbicide agents. The Board is choosing to rely on the M21-1 as a factor or as the rule of decision in this case because the statute and regulations related to herbicide agents do not otherwise specifically address exposure in Thailand and, as will be outlined further below, application of the M21-1 in this case is beneficial to the Veteran in that such results in a full grant of the benefits sought on appeal. Evidence and Analysis The Veteran’s service personnel records noted that he served in Thailand from June 1970 to June 1971. Also of record are performance reports dated related to the Veteran’s Thailand service. A performance report for the period from May 1970 to January 1971 noted the Veteran’s current duty as being in the Bomb Assembly Section and stated that the Veteran “[s]upervises the crews in the installation of fins and fus[]es on all general purpose bombs.” A performance report for the period from January 1971 to June 1971 noted the Veteran’s current duty as being in the Bomb Assembly Section and stated that the Veteran “[i]nstalls fins and fu[s]es on all general purpose bombs” and that he “has mastered all phases of assembly, inspection, and installation of all components for general purpose bombs.” The Veteran’s DD 214 listed a Specialty Title of Munitions Maintenance Specialist. The Veteran provided various statements regarding his in-service duties and to being near the air base perimeter in at the U-Tapao RTAFB. In a February 2013 statement the Veteran stated that “[t]he perimeter around the building that I spent most of my time in was completely barren. I saw guys spraying all around our area every week. This spray killed all vegetation.” In the Veteran’s February 2014 notice of disagreement (NOD) he stated that “I maintained the munitions in the munitions storage area which is on the outer edge of the Base” and that “[i]n the attached photos please see that the area around the building I worked in is located on the outer edge of the Base, nothing ever grew there.” He also stated that “I saw them spray Agent Orange on the ground around the building at least once a week while I was there.” On the Veteran’s December 2015 VA Form 9 he stated “[p]lease see the attached photos showing the buildings where we assembled and loaded the bombs onto racks; in close close proximity to the perimeter.” In a June 2016 statement the Veteran stated that “I was exposed to Agent Orange/Herbicides for the entire 12 month period I was” at U-Tapao RTAFB. He also stated that “[m]y [Military Occupational Specialty (MOS)] of Munitions Maintenance Specialist assembling bombs placed me on the base perimeter where the bomb dump was located as demonstrated in the photos previously submitted.” On a January 2017 VA Form 9 the Veteran stated that “I submitted an a[e]ri[a]l photo of U[-]Tapao RTAFB indicating the munitions storage area and the building in which I worked assembling bombs was located on the perimeter of the base.” He also stated that “[a]dditional photos previously submitted show the bomb assembly building surrounded by high mounds (12 Feet) called revetments. These mounds were treated with herbicides repeatedly to keep them devoid of any vegetation whatsoever as witnessed by me during my 12 month tour of duty.” As outlined, the Veteran variously referenced submitted photographs. The photographs generally appear to show what the Veteran described. Three photographs (one labeled as the bomb assembly building) show open air structures surrounded by barren landscapes (with what are presumably bombs inside the structures). Also submitted was an aerial photo labeled as the “U-Tapao Basemap,” with the Veteran identifying the location of the bomb assembly building, which appeared to be near the base perimeter. Another aerial photo submitted included the labeling of the bomb assembly building and the base perimeter, with the building appearing to be near the base perimeter. Also submitted was a map of U-Tapao RTAFB with the location of the bomb assembly building and the perimeter fence identified, with the building appearing to be near the perimeter fence. Also, the Veteran’s prior representative submitted a November 2016 VA Form 646 (Statement of Accredited Representative in Appealed Case) stating that “the Veteran[’]s MOS was Munition Maintenance Specialist. This obviously would have placed the Veteran around the munition storage areas, flight line and assembly facility. The ammunition storage area would have been on the outskirts of the air base along the perimeter to minimize collateral damage from any accidental detonation.” Upon review, the Board finds that the Veteran served near the U-Tapao RTAFB air base perimeter and credibly reported actual exposure in sight of spraying operations immediately adjacent to his work area. As such, in-service herbicide agent exposure is conceded on a direct/facts-found basis. In general, the Veteran reported that his work as a munitions maintenance specialist required him to work near the air base perimeter due to the location of the bomb assembly building. The Veteran is competent to report as to the duties he performed in service and to the proximity of his service to the air base perimeter while at U-Tapao RTAFB. The Veteran’s reports of his service duties while at U-Tapao RTAFB are consistent with his relevant performance reports. In addition, the Board finds it to be quite plausible, as referenced in the prior representative’s VA Form 646, that the bomb assembly building would be located near the air base perimeter due to the hazardous nature of the bombs being assembled. Based on review of the evidence of record, pursuant to the M21-1, the Board finds that during the Veteran’s Air Force service during the Vietnam Era at U-Tapao RTAFB he was “otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence” and, accordingly, the Board will “concede herbicide exposure on a direct/facts-found basis.” See M21-1, Part IV.ii.1.H.5.b. As noted, certain diseases, to include prostate cancer, warrant presumptive service connection for veteran’s who have been exposed to herbicide agents during their active service. See 38 C.F.R. §§ 3.307(a), 3.309(e). As outlined, the Board has found that the Veteran served near the U-Tapao RTAFB air base perimeter and therefore in-service herbicide agent exposure is conceded on a direct/facts-found basis. Various evidence of record indicated that the Veteran was previously diagnosed with prostate cancer and subsequently had a prostatectomy in 2008. See, e.g., January 2008 Operative Report. More recent VA treatment records included a November 2017 record that listed an assessment of “[history of] Prostate [cancer], urinary incontinence.” As such, the Board concludes that the criteria for entitlement to service connection for prostate cancer residuals have been met and, to this extent, the Veteran’s claim is therefore granted. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Entitlement to service connection for sleep apnea Legal Criteria Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 38 C.F.R. § 3.303(d) states that “[s]ervice connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.” Evidence and Analysis On the Veteran’s February 2013 VA Form 21-526 (Veteran’s Application for Compensation and/or Pension), he noted a disability of sleep apnea and listed that such began in 1970. Various evidence of record referenced a diagnosis of sleep apnea. For example, a February 2013 VA Form 21-0960L-2 (Sleep Apnea Disability Benefits Questionnaire) completed by Dr. M.B. noted a diagnosis of sleep apnea, with a date of diagnosis noted in November 2007. The Veteran’s service treatment records (STRs) did not contain any complaint related to the Veteran’s sleep. On a February 1972 separation Report of Medical History form the Veteran denied ever having or having now frequent trouble sleeping. The Veteran’s STRs, however, did contain various notations related to the Veteran’s upper airway. For example, an August 30, 1971 STR noted “[history] tonsillitis chronic infection.” STRs also noted that in September 1971 the Veteran underwent a tonsillectomy. The February 1972 separation examination report noted upon clinical evaluation the Veteran’s mouth and throat as abnormal and noted “[t]onsils enucleated” and also stated “[t]onsillectomy in service, 1971; no comp[lication] no seq[uelae].” Of record are two statements from family members of the Veteran. The first is a February 1974 statement from the Veteran’s spouse. She stated that she and the Veteran were married in May 1974 and that: From the outset of our marriage, [the Veteran] has had episodes of what now has been diagnosed as sleep apnea. This includes repeated instances where he stops breathing all together. It can last between 20 to 30 seconds or more before he starts breathing again, sometimes on his own, but often only by physically shaking him. These episodes have gone on over the last forty years, and have increased steadily. They can occur five or six times per night. The Veteran stated on his February 2014 NOD “please see the attached letter from my wife showing that I had the symptoms of sleep apnea going back to 1974.” Also of record is a November 2015 statement from the Veteran’s brother. He stated that: When [the Veteran] got out of the service in 1972[,] I remember how excited we were when he told us he was going to move home after being discharged. Although it was great having my brother around again it was not very comfortable sharing a room with him. His snoring woke me up at nights. At times it seemed he would wake up gasping for air and then go back to sleep. This situation got so bad that I had to make a room we used for storage into a separate room for me to sleep. The Veteran stated on his December 2015 VA Form 9 “[p]lease see the attached letter from my brother showing that I had the symptoms that were later diagnosed as that of sleep apnea starting when I came home from the service.” On a January 2017 VA Form 9 the Veteran stated that “in August 1971 I became ill with severe tonsillitis which continued until mid-September 1971 at which time I was hospitalized and my tonsils were removed.” He stated that “[t]he length of time and severity of this illness prompted the onset of my sleep apnea.” The Veteran submitted a January 2017 medical opinion from Dr. B.D. The opinion stated that the Veteran was diagnosed with severe obstructive sleep apnea (OSA) in 2007. The opinion stated that the Veteran’s: initial symptoms of [OSA] began after exposure to agent orange in the service that led to severe tonsillitis and upper airway problems, surgery to remove tonsils but persistent snoring and apneic events. With a reasonable degree of medical certainty, [the Veteran] is suffering the consequences of unprotected and prolonged exposure to agent orange and herbicides while in the service that resulted in upper airway disease that triggered his [OSA] that remains a problem to this day and requires treatment. (Continued on the next page)   Upon review, the Board finds that the Veteran’s sleep apnea is attributable to active service. As noted, STRs contained various notations related to the Veteran’s upper airway, to include a 1971 tonsillectomy. Also, as outlined, statements from the Veteran’s brother and spouse included competent observations describing the Veteran experiencing what appear to be symptoms consistent with sleep apnea symptoms shortly following his separation from active service. The only competent opinion of record addressing the relationship between the Veteran’s sleep apnea and his active service was the positive January 2017 private opinion from Dr. B.D. This opinion was provided by a doctor and, essentially, described the onset of the Veteran’s sleep apnea as being the result of his in-service upper airway disease, tonsillitis and tonsillectomy. The physician did not provide a rationale for the finding that the upper airway disease was caused by herbicide exposure, but there is credible evidence that the upper airway abnormalities were present during service. There is no competent evidence contrary to the conclusion provided by Dr. B.D. As such, the Board concludes that the criteria for entitlement to service connection for sleep apnea have been met and, to this extent, the Veteran’s claim is therefore granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel