Citation Nr: 20006421 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-35 759A DATE: January 27, 2020 ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, is granted. FINDINGS OF FACT 1. The Board finds the Veteran was exposed to herbicides while stationed at the Royal Thai Air Force Base in Ubon, Thailand. 2. The Veteran has a current diagnosis of prostate cancer. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met on a presumptive basis. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from February 1969 to October 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In November 2019, a videoconference hearing was held before the undersigned; a transcript of the hearing is of record. SERVICE CONNECTION Service connection will be granted for a disability resulting from 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. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternatively, certain chronic diseases, including prostate cancer, will also be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 U.S.C. § 1116 (f), a claimant, who, during active service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during that service. If a veteran was exposed to an herbicide agent during active service, certain diseases, to include prostate cancer, shall be service connected even though there is no record of such disease during service. 38 C.F.R. §§ 3.307, 3.309(e). VA’s Compensation and Pension Service has determined that a special consideration of herbicide agent exposure on a factual basis should be extended to Air Force veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force bases anytime between February 28, 1961, and May 7, 1975. The listed Thai military facilities include the Ubon RTAFB. If a veteran’s military duties, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, placed him or her near the air base perimeter, then VA is to concede herbicide exposure on a direct or facts found basis. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran has been diagnosed with prostate cancer. See July 2011 VA treatment records. The first element of service connection has been met. The Board finds that the Veteran has established the second requirement for service connection, which is evidence of an in-service incurrence, injury, or disease. First, there is no evidence that the Veteran’s prostate cancer existed during, or manifested, within one year of service. Thus, presumptive service connection under 38 U.S.C. § 3.309(a) is not applicable. Although the Veteran’s diagnoses for prostate cancer did not manifest until after service, he contends that these disabilities are related to his in-service exposure to herbicides, including Agent Orange, while stationed in Thailand. Service personnel records reflect that the Veteran served in Thailand during the Vietnam era. See June 1972 Military Personnel Record. He testified that while he was stationed at the Royal Thai Air Force Base in Ubon, Thailand, he worked as a “bomb damage assessment equipment repairer” that placed him on the perimeter of the flight line on a daily basis. See VA 21-526EZ, Fully Developed Claim; see also November 2019 Hearing Transcript. Additionally, the Veteran testified to being housed in open-air barracks situated close to the flight line, providing pictures of both the barracks and its proximity to the flight line. See November 2019 VA 21-4138 Statement in Support of Claim; see also November 2019 Photographs. The Board finds that the competent and credible evidence of record reflects that the evidence is at least in equipoise as to the Veteran’s actual exposure to chemicals during service. The Veteran is presumed to have been exposed to herbicides in service on a facts-found basis. As he is presumed to have been exposed to herbicide agents and prostate cancer is among the diseases presumed to be associated with such exposure, service connection is warranted on a presumptive basis. 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelsey Love, 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.