Citation Nr: 20003063 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-02 086 DATE: January 14, 2020 ORDER Entitlement to service connection for ischemic heart disease, to include as a result of exposure to herbicide agents, is granted. Entitlement to service connection for prostate cancer, to include as a result of exposure to herbicide agents, is granted. FINDINGS OF FACT 1. The Veteran’s ischemic heart disease is presumptively related to his in-service herbicide agent exposure. 2. The Veteran’s prostate cancer is presumptively related to his in-service herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ischemic heart disease, as due to herbicide exposure, have been satisfied. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309 2. The criteria for entitlement to service connection for prostate cancer, as due to herbicide exposure, have been satisfied. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force as a physician from July 1966 through July 1968. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. At the hearing, the Veteran and his representative requested the record to remain open for 90 days to allow the Veteran to submit additional evidence with a waiver of RO jurisdiction consideration. Additional evidence was submitted and considered by the Board in this decision. Service Connection 1. Entitlement to service connection for ischemic heart disease as a result of exposure to herbicides is granted. 2. Entitlement to service connection for prostate cancer as a result of exposure to herbicides is granted. The Veteran contends his ischemic heart disease and prostate cancer are related to his active duty service in the Air Force; specifically, the Veteran contends that he was exposed to herbicide agents during his service in Thailand or as a result of trips to the Republic of Vietnam. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, (including ischemic heart disease and prostate cancer) are presumed to be related to service if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Additionally, for Air Force Veterans who served at certain Royal Thai Air Force Bases (RTAFB), including Nakhon Phanom, as security policemen, security patrol dog handlers, members of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation, or other credible evidence of record, exposure to herbicide agents is also presumed. VBA Manual M21-1, IV.ii.1.H.5.b. VA has determined that there was use of herbicides on the fenced-in perimeters of military bases in Thailand for the purpose of eliminating vegetation and ground cover for base security purposes. This allows for presumptive service connection of the diseases associated with herbicide exposure. Treatment records and correspondence from private doctors confirm the Veteran has diagnoses of ischemic heart disease and prostate cancer. The current disability criterion is met for each claim. There is no evidence, and the Veteran does not contend, that his claimed disabilities had their onset during his active service. Instead, the Veteran has steadfastly maintained that his disabilities are due to his exposure to herbicide agents, either as a result of his trips to Nakhon Phanom or as a result of trips he took to the Republic of Vietnam. The Veteran’s personnel record demonstrates that he served as a general practitioner during his active service. At his hearing and in statements to VA, the Veteran has explained that his duties in this role took him to Nakhon Phanom of the RTAFB approximately 30 times during his service via helicopter. The Veteran also reported he traveled to Tan Son-Nhut in Saigon, Vietnam on three separate occasions, spending hours at the airport while the plane re-fueled and had maintenance performed. Further, the Veteran submitted a buddy statement from a retired Colonel who served with him at Nakhon Phanom. The Colonel’s buddy statement confirmed two of the Veteran’s trips to Vietnam. He reported he recalled the conversations because he picked the Veteran up from the flight line. He also reported he remembers the two times because one was during the day and they discussed the extreme heat and one was at night and they discussed the tracer bullets and explosions the Veteran recounted. At his September 2019 video conference hearing, the Veteran’s daughter read his statement regarding his time in Thailand and Vietnam. He explained he was around the flight line and was transported by helicopter 30 times to Nakhon Phanom and the three trips to Vietnam. The Veteran contends the helicopter stirred up herbicide agents and therefore he was exposed to herbicide agents on his 30 trips via helicopter. In March 2015, a formal finding from the Joint Services Records Research Center (JSRRC) confirmed the Veteran did serve at Nakhon Phanom but could not concede exposure to herbicide agents in Thailand or Vietnam. The JSRRC stated service in Vietnam could not be confirmed. The Veteran’s personnel records detailed the Veteran’s duties and his instrumental involvement in medical care while in Thailand. His personnel record details his service and reported he spent a large portion of his tour in isolated, hazardous, jungle areas of Thailand. Although the Veteran’s service personnel records do not specifically confirm his duties placed him in close proximity to the base perimeter, the various statements provided by the Veteran and in his buddy statement from a retired Colonel he served with have been consistent and the Board finds no reason to question their veracity. Upon consideration of the record, the Board finds that the Veteran stands as a credible historian regarding the purported in-service exposure. Generally, a veteran is competent to report that which he perceives through the use of his senses, including events capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, the additional evidence tends to corroborate the Veteran’s testimony, including service records. Also, while the JSRRC did not concede herbicide agent exposure, the Veteran’s service at Nakhon Phanom was confirmed. Here, the Veteran’s testimony is well-documented throughout the record and consistent with the nature of his service. The Board finds that, resolving all reasonable doubt in his favor, the Veteran’s in-service duties while stationed in Thailand brought him to the perimeter, and that the Veteran did visit Vietnam as part of his duties in-service. Each provides an independent way in which he was presumed exposed to herbicide agents. As the Veteran’s claims for service connection depend on such a finding, service connection for ischemic heart disease and prostate cancer, are presumed as due to this exposure. Service connection is warranted for each of the Veteran’s service connection claims on appeal. To be clear, in this decision, the Board is not making a categorical finding as to whether herbicide agents were stored or used at Nakhon Phanom. Further, as noted below, Board decisions are non-precedential, and are instead “decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.” 38 C.F.R. § 20.1303. (Continued on next page) Thus, for the reasons described above, the Board finds the evidence in equipoise as to the Veteran’s exposure to herbicide agents, compelling the decision herein. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.