Citation Nr: 18127880 Decision Date: 08/21/18 Archive Date: 08/20/18 DOCKET NO. 15-41 202A DATE: August 21, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for prostate cancer is reopened. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure is granted. FINDINGS OF FACT 1. An unappealed March 2014 rating decision confirmed and continued the previous denied claim of service connection for prostate cancer on the basis that the record did reflect any treatment for, or diagnosis of this condition in service, nor did it establish that the Veteran’s military occupational duties would have exposed him to herbicides while serving in the military. 2. Additional evidence received since the March 2014 decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim seeking service connection for prostate cancer and raises a reasonable possibility of substantiating the claim of service connection for prostate cancer. 3. The Veteran was exposed to herbicides while serving at Udorn Royal Thai Air Force Base (RTAFB) in Thailand from February 1967 to March 1968. 4. The Veteran has been diagnosed with prostate cancer. CONCLUSIONS OF LAW 1. The March 2014 rating decision which confirmed the previous denial of service connection for prostate cancer is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302, 20.1103 (2017). 2. The evidence received subsequent to the March 2014 rating decision is new and material, and the previously denied claim for service connection for prostate cancer is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for entitlement to service connection for prostate cancer have all been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(e) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from September 1965 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Petition to Reopen Claim of Service Connection for Prostate Cancer The Veteran contends that he developed prostate cancer as a result of his exposure to herbicides during his active service. By way of the November 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied the claim seeking service connection for prostate cancer. In a March 2014 rating decision, the AOJ continued and confirmed the previous denial of service connection for prostate cancer. The Veteran was notified of these decisions and of his appellate rights, but he did not submit a notice of disagreement (NOD) within one year of these decisions. No relevant evidence was submitted within one year of the March 2014 denial. Thus, the March 2014 decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.1103. In general, rating decisions that are not timely appealed to the Board become final. See 38 U.S.C. § 38 U.S.C. § 7105(d)(3). In April 2014, the Veteran sought to reopen his claim. Despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is furnished with respect to the claim that has been disallowed. 38 U.S.C. §5108; 38 C.F.R. § 3.156 (a). In order to reopen a claim that has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. In the November 2013 rating decision, the AOJ denied the claim for service connection for prostate cancer on the basis that the evidence did not reflect that this disability began during, or was causally or etiologically related to, the Veteran's military service. The AOJ specifically noted that evidence did not show that the location of the Veteran’s military service, or the events he experienced therein, qualified for the presumption of service connection for prostate cancer due to exposure to herbicides in service. The AOJ noted that service connection may be established based on a relationship to herbicide exposure if the evidence demonstrated service in Vietnam during the Vietnam era or exposure to herbicides through some other military service. The AOJ determined that the record did not establish evidence of exposure to herbicides during military service. In the March 2014 rating decision, the AOJ confirmed the previous denial of service connection for prostate cancer and noted that additional evidence received since the November 2013 rating decision failed to demonstrate any military service in which exposure to herbicides has been established. The Veteran has continued to contend that he had exposure to herbicides while serving in both Vietnam and Thailand during the Vietnam Era. The Board notes that VA’s Adjudication Procedures Manual, M-21, indicates 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. In this regard, evidence received since the March 2014 rating decision includes the February 2018 Brief submitted by the Veteran’s attorney in support of his appeal, which includes a more detailed statement by the Veteran describing how he regularly had contact with the base perimeter of his unit while fulfilling his military duties. The brief also includes a map of Udorn RTAFB, which further supports the Veteran’s contentions that his activities brought him in close proximity of the base perimeter. The Board finds that the February 2018 Brief, and the documents included therein, to be new and material evidence within the provisions of 38 C.F.R. § 3.156. Indeed, the February 2018 Brief, along with the more detailed statement issued by the Veteran, and the photograph of the map of Udorn RTAFB were not of record at the time of the March 2014 rating decision. In addition, these records support the Veteran’s contentions that his military duties placed him in certain locations that would have put him within close proximity to the base perimeters. As such, these records relate to an unestablished fact necessary to substantiate the claim. Thus, the Board finds that new and material evidence has been presented to reopen his previously denied claim seeking service connection for prostate cancer. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has been diagnosed with having prostate cancer. The post-service medical records reflect that he underwent a right and left prostate biopsy in February 2001, the results of which revealed approximately 10 percent of the specimen to be “occupied by a moderately differentiated adenocarcinoma involving both lobes.” The records further reflect that the Veteran underwent a DaVinci Laparoscopic radical prostatectomy in June 2001 and his post-operative recovery was uneventful. VA laws and regulations provide that, if a Veteran was exposed to certain herbicide agents during service, specific listed diseases, to include prostate cancer, are presumptively service-connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). In some limited instances, herbicide exposure in Thailand is recognized. See M21-1 Manual, M21-1, Part IV, Subpart ii, 1.H.5.b. The dispositive issue in this case is whether the Veteran was exposed to such herbicide agents during active service. Although veterans who served in Vietnam are presumed to have been exposed to herbicides, the evidence does not reflect that the Veteran served in Vietnam as that term is defined in the applicable regulation. The Veteran’s military personnel records reflect that he was stationed at Udorn RTAFB in Thailand from February 1967 to March 1968 where he worked as a Fire Protection Specialist alongside the 432nd Civil Engineer Squadron. With regard to exposure to herbicides outside of Vietnam, as noted above, VA’s M-21 guidelines state 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 RTAFBs, including Udorn, 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. Although the Veteran contends that he had service in Vietnam, his service personnel records do not establish any periods of service in Vietnam. Therefore, he is not presumed to have been exposed to an herbicide agent due to service in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309. In a June 2013 statement, the Veteran asserted that he had exposure to herbicides during his tour of duty at Udorn RTAFB. According to the Veteran, while stationed at Udorn RTAFB, he and his fellow servicemen were assigned “runway duty” while the planes were being loaded in the area. In a statement dated in November 2013, the Veteran provided additional information regarding his occupational duties while serving in Thailand. He explained that his military occupation was that of a military fireman/crash crew worker, and he and his fellow servicemen were responsible for going “all over the flight line and in and around the perimeter fence line, especially when putting out fires or inspecting the area.” The Veteran’s service personnel records include his performance evaluations for the period from January 1967 to September 1967 and the period from September 1967 to February 1968. In the first evaluation, his reporting official noted that the Veteran’s current duty was that of Handlineman on major fire-fighting units, and his responsibilities included assisting the driver operator in the inspection and operational check of all rescue and first aid equipment on his assigned unit. In the Comments section, the reporting official noted that that the Veteran had participated in three runway foaming operations for aircraft emergencies. In the second evaluation, the reporting official noted that the Veteran’s duties as Driver/Operator involved performing driver maintenance of assigned vehicles and reporting all discrepancies to the crew chief. The reporting official also noted that the Veteran was responsible for the safe and expeditious response of his vehicle to the scene of all fires and aircraft emergencies. In the comments section, the official further brought up the Veteran’s exceptional job while performing numerous duties, to include three runway foaming operations. In the February 2018 hand-written statement, the Veteran asserted that his duties as a firefighter included putting out fires on base, as well as putting out building fires, brush fires and aircraft fires. The Veteran explained that one of his duties involved standing by in a firetruck just off the runway in case combat damaged planes attempted a landing. According to the Veteran, whenever a damaged plane landed, he would follow it until it came to a full stop, and if the plane was on fire, he would tend to the fire and rescue the pilots if necessary. According to the Veteran, he and his fellow servicemen never knew where the plane would land or come to a stop. He further stated that after completing his training, another one of duties included foaming the runway in preparation for badly damaged aircraft and wounded pilots. This particular duty entailed going to the “far ends of the field to foam the runway because [they] never knew exactly [where the planes] would touch down.” He further asserted that another one of his duties included inspecting the building on the base in search of fire hazards. In the February 2018 Brief, the Veteran’s attorney referenced the Army Manual FM 3-3, Tactical Use of Herbicides, which reflected that a “500-meter buffer distance should be maintained to avoid damage to desirable vegetation near the target”. The Veteran’s attorney noted that five hundred meters amounted to 546 plus yards, which was the equivalent of five football fields. The Veteran’s attorney further noted his duties as a fire protection specialist put him in contact with the perimeter of the base where herbicides were sprayed. According to the Veteran’s attorney: “As evidenced by his performance reports covering the time periods of January 1967 to February 1968, the Veteran was involved in fighting fires around the base, including many incidents involving foaming operations on the runway and fighting fires on armed aircraft which recently landed on the runway. The Veteran’s service personnel records demonstrate that he was responsible for the safe and expeditious response of his vehicle to the scene of all fires and aircraft emergencies. The [V]eteran positioned equipment and operated the pump at the desired pressure for effective control and extinguishment of fires. As the [V]eteran testifies in the attached statement, this included building fires, brush fires, and aircraft fires.” According to the Veteran’s attorney, “[a]s outlined in Project CHECO Southeast Asia Report: Base Defense in Thailand when describing Udorn RTAFB, “[t]he perimeter was also very close to the aircraft at several points.” This would corroborate the [V]eteran’s statements that his duties as a Fire Protection Specialist would bring him into contact with the perimeter of the base as his duties brought him into contact with the full length of the runway.” The Veteran also submitted a picture of a map which included an aerial overview of his base unit, the perimeter of the military unit, and the runway where most of his missions occurred. Based on this picture, the area where the plane recovery missions, handling of fire and aircraft emergencies, and foaming operations occurred were within close proximity to the perimeter of the military base. These photographs further support the Veteran’s contentions that the runway where he spent so much of this time, was close to the base perimeter. In a November 2013 Formal Finding Regarding the Information required to Corroborate exposure to Agent Orange while serving in Thailand (Formal Finding), it was determined that the information required to corroborate the Veteran’s exposure to Agent Orange while serving in Thailand was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. 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. The above lay evidence is competent and credible. Although the November 2013 Formal Finding and the November 2013 rating decision (wherein the AOJ determined that the Veteran’s service personnel records failed to establish any duties in which the Veteran may have been exposed to herbicides) weigh against the Veteran’s contentions of exposure to herbicides while serving at the Udorn RTAFB, the VA’s Adjudication Procedures Manual, M-21, directs that herbicide exposure should be acknowledged for U.S. Air Force Veterans who served on RTAFBs in Thailand if the Veteran’s military duties placed him near or on the perimeter of the Thailand military base, and there is additional credible evidence supporting this contention. Viewing the entirety of the evidence, the Board finds that this evidence is 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 Udorn RTAFB frequently placed him at or near 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. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Keyvan, Counsel