Citation Nr: 20006499 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 17-27 026 DATE: January 27, 2020 ORDER Service connection for prostate cancer, claimed as due to herbicide agent exposure, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran had prostate cancer during active service, or that it manifested to a compensable degree within one year after discharge, or that it is otherwise etiologically related to an in-service injury or disease; although the Veteran had service in Thailand, his exposure to Agent Orange is not established by the record. CONCLUSION OF LAW The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service during the Vietnam Era from February 1970 to March 1972. He did not serve in the Republic of Vietnam. This matter is before the Board of Immigration Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). Service connection for prostate cancer, claimed as due to herbicide agent exposure. The Veteran contends that he is entitled to service connection for his diagnosed prostate cancer, because it was caused by his exposure to herbicide agents, including Agent Orange, during active service in Thailand. The Veteran does not contend that he served in the Republic of Vietnam or had herbicide exposure other than through his active service at Korat Royal Air Force Base, Thailand. In support of his claim, he submitted photos, obtained through the internet, of Korat Air Force Base, Thailand, to show the perimeter, barrels of Agent Orange. He further submitted copies of unclassified Department of Defense documents including a copy of the Department of Air Force “Project CHECO Reports.” Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) 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); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Similarly, service connection based on exposure to designated herbicide agents (e.g., Agent Orange) will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. Prostate cancer is a disease deemed associated with herbicide exposure for purposes of the presumption. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309. The Board concludes that, while the Veteran was diagnosed and treated for prostate cancer, the preponderance of the evidence is against finding it had its onset in service, manifested to a compensable degree within one year after service discharge, or that it is otherwise etiologically related to his active service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Service treatment records (STRs) reflect no complaints or abnormal genitourinary pathology for the prostate. The Veteran was discharged in March 1972. His DD 214 shows that he served as a clerk typist and military personnel records (MPRs) show that he served at the Korat Royal Air Force Base, Thailand, from September 1970 to September 1971 as a clerk typist. Decades later, in 2015, private treatment records reflect that the Veteran had biopsy findings consistent with prostate cancer. The Veteran does not contend, nor does the evidence reflect that he had prostate cancer in service or within one year after service. To the extent that he argues he had Agent Orange exposure warranting presumptive service connection, the Board disagrees. Although a veteran who served in Thailand during the Vietnam era is not entitled to the legal presumption of exposure to a herbicide agent, VA guidelines (citation omitted) provide that exposure to an herbicide agent may be considered on a “direct/facts-found basis” if a Veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases 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. Further, the Board acknowledges that May 2010 VA Compensation and Pension (C&P) Bulletin indicated that, after reviewing a declassified Vietnam era Department of Defense (DoD) document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand,” it had been determined that there was significant use of herbicides on the fenced in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Therefore, according to the C&P Service, when herbicide-related claims involving Thailand service are received, VA should evaluate the treatment and personnel records to determine whether a veteran’s service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. The C&P Service determined that special consideration of herbicide exposure cases should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases. Here, the record does not establish the Veteran’s exposure to herbicide agents in Thailand. VA attempted to verify the reported exposure, but was not successful as explained in an April 2017 memorandum of formal finding. This memo indicated that VA lacked the information the United States Army and Joint Services Records Research Center (JSRRC) required to verify the Veteran’s herbicide exposure in Thailand. In this regard, there was no indication that the Veteran functioned as a Security Policeman, Security Dog Patrol Handler, a member of a Security Police Squadron, or otherwise served near the base perimeter in his military occupation as a clerk typist. The Board has carefully considered the Veteran’s uncorroborated report of exposure to Agent Orange through his leisure time, crossing outside the base and spending leisure time near the perimeter on a beach area. See VA Form 21-4138 (June 2015). However, the Board finds that this is not credible supporting evidence of his actual exposure to herbicide agents. His description is vague insofar as it does not clearly reflect his proximity to the perimeter or frequency. His statements suggest at best contact with the perimeter of a fleeting nature, which is not reasonably analogous to the extended exposure of security personnel and dog handlers who walked along the base perimeter for hours at a time on a daily basis or those servicemembers whose barracks or duty station directly abutted the base perimeter. Therefore, "other credible evidence" of exposure to herbicide agents at the base perimeter during the Veteran's service in Thailand akin to that of security personnel and dog handlers, is simply not shown. Additionally, no VA or private treatment records have been received which establish a nexus between the Veteran's development of prostate cancer and any in-service injury or disease. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Flynn, 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.