Citation Nr: 20021808 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 17-48 025 DATE: March 27, 2020 ORDER Entitlement to service connection for prostate cancer is granted. REMANDED Entitlement to service connection for Parkinson's disease is remanded. FINDINGS OF FACT 1. Based on service records and the Veteran’s competent and credible assertion of having served on Ubon Royal Thai Air Force Base in Thailand and performed duties that placed him near the base perimeter, and resolving doubt in his favor, the Veteran was exposed to herbicides during active service. 2. The Veteran has prostate cancer, which is a disease recognized by VA as associated with herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer as a result of exposure to herbicides have been met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.303, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served during the Vietnam era in the Air Force from November 1969 to November 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2020. A transcript of the hearing has been associated with the Veteran’s electronic claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2019). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2019). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A Veteran who 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 that service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any herbicide agent during that service. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2019). Prostate cancer is a disease recognized by VA as associated with herbicide exposure. 38 C.F.R. § 3.309(e) (2019). VA has also acknowledged that herbicides were used on certain base perimeters in Thailand during the Vietnam era. Special consideration of herbicide exposure on a facts-found or direct basis can be extended to those veterans whose duties placed them at or near the perimeter on certain Thailand military bases, including the Ubon Royal Thai Air Force Base (RTAFB). Entitlement to service connection for prostate cancer The Veteran is seeking service connection for prostate cancer based solely on exposure to herbicide agents during service. An August 2004 private treatment record shows a diagnosis of adenocarcinoma. A March 2014 private medical evaluation reveals a history of prostate cancer status post prostatectomy. As such, the Veteran has a current diagnosis of prostate cancer. The Veteran claims that his overseas service at Ubon RTAFB in Thailand, during the Vietnam Era, qualifies as in-country service in the Republic of Vietnam, and warrants presumptive service connection for prostate cancer. See February 2020 Hearing Transcript. Furthermore, and most significantly, the Veteran claims that his military occupational specialty (MOS) as an avionics instrument repairman required him to work on the perimeter of Ubon RTAFB. Id. Specifically, the Veteran asserts that his work location at the engine run up area placed him within the length of a football field from the perimeter of the base. Id. The Veteran states that he lived off base in downtown Ubon for part of the time and that he had to cross the base perimeter daily to report to work. Id. The Veteran also states that he was placed on temporary duty at Bien Hoa in Vietnam for two months starting in April 1972 and that he serviced aircraft during that time. Id. The Veteran asserts that the Air Force frequently assigned service members to temporary duty during the time period in question. Id. The Veteran’s performance evaluations are available. A July 1972 performance evaluation from Ubon RTAFB listed the Veteran’s current duty as “Avionics Instrument Systems Specialist. Performs maintenance on integrated and conventional instrumentation regarding the complex F-4D and F-4E Weapons Systems.” See Military Personnel Record received March 2017. The performance evaluation notes that the Veteran was utilized in the bench repair section as well as on the flight line. Id. The Veteran’s DD 214 and performance evaluations confirm his MOS as an avionics instrument systems specialist. The Veteran’s records confirm his service in Thailand at Ubon RTAFB. See Military Personnel Record received March 2017. Thus, service in Thailand at Ubon RTAFB has been established. In this case, the Board will focus on the Veteran’s assertion that he was exposed to herbicides in Thailand. As the Veteran served at the Royal Thai Air Force Base in Ubon during the Vietnam era, exposure to herbicides may be conceded on a direct facts found basis if he served near the perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. While the record does not clearly identify whether the Veteran was exposed to herbicides while stationed at Ubon RTAFB, the Board notes that there is no basis in the record to question the Veteran’s credibility regarding his statements that his assigned duties involved work near the perimeter of the base. The statements by the Veteran indicate that he regularly worked near the base perimeter. The Veteran’s statements as to the location of duties performed by him while stationed in Thailand are competent lay evidence of what the Veteran observed during service in Thailand. Layno v. Brown, 6 Vet. App. 465 (1994) (lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board notes the Veteran’s performance evaluations describe his work maintaining the F-4D and F-4E aircraft weapons systems, to include working on the flight line. While an avionics instrument systems specialist is not one of the MOSs conceded to have been exposed to herbicides in Thailand, the Board finds the Veteran’s information credible and notes that daily work on the engine run up area and on the flight line would be consistent with the duties of his MOS. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (providing that when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing). The Veteran’s credible statements regarding the Ubon RTAFB locations where he worked, taken in conjunction with the information regarding employment of herbicides during the Vietnam era, supports a finding that the Veteran was exposed to herbicides during service. As the Veteran’s post-service medical records show a diagnosis of prostate cancer his disability is found to have been incurred during active duty service based on the Veteran’s exposure to herbicides during service in Thailand. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(2012); 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND Entitlement to service connection for Parkinson's disease is remanded. The Veteran asserts that he suffers from Parkinson’s disease as a result of exposure to herbicide agents during service. A December 2016 private treatment record reveals diagnoses of cognitive impairment and Parkinsonism. The Veteran’s private physician noted a constellation of symptoms to include shuffling gait, masked facies, bradykinesia, and hypophonia with a reported history of micrographia which raised the question of whether the appropriate diagnosis is Parkinsonism or Parkinson’s disease. The private physician recommended further evaluation by a neurologist to determine a diagnosis. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to his claim. As the record contains insufficient evidence to substantiate the claim, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for Parkinson’s disease. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As such a remand is warranted for a VA examination. The matter is REMANDED for the following action: Schedule the Veteran for an examination by a neurologist (M.D.) to determine the nature and etiology of his claimed Parkinson’s disease and cognitive impairment. (a.) Identify the Veteran's current diagnosis. (b.) If there is no current diagnosis of Parkinson’s disease, the examiner should address the following: 1. Are the Veteran's manifestations and the currently diagnosed disorders considered by the medical community to be equivalent to or a subcategory of Parkinson's disease as contemplated in the listing of diseases in 38 C.F.R. § 3.309(e) for which there is a presumption of service connection due to exposure to herbicide agents? 2. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's Parkinsonism is caused by an in-service injury, event, or disease, including exposure to herbicides? 3. Is it at least as likely as not that the Veteran's Parkinsonism (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Review of the entire claims file is required, to include the December 2016 private treatment record. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The Veteran’s exposure to herbicides during the Vietnam era is presumed. The fact that a presumption has not been established for the particular disorder at issue is not dispositive of the issue of nexus. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, 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.