Citation Nr: 20031024 Decision Date: 05/04/20 Archive Date: 05/04/20 DOCKET NO. 17-19 875 DATE: May 4, 2020 REMANDED The claim of entitlement to service connection for right ear hearing loss is remanded. The claim of entitlement to service connection for tinnitus is remanded. The claim of entitlement to service connection for residuals of prostate cancer, claimed as due to herbicide exposure in Thailand, is remanded. The claim of entitlement to service connection for decreased bladder control associated with residuals of prostate cancer is remanded. The claim of entitlement to service connection for impotence associated with residuals of prostate cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1966 until February 1970, with service in Thailand at U-Tapao Royal Thai Air Force Base and Nakhon Phanom Royal Thai Air Force Base from February 1969 until February 1970. He had additional service in the Air National Guard from 1978 to 1996. These matters come before the Board of Veterans’ Appeals on appeal from a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2019 at which time the Board denied service connection for right ear hearing loss, tinnitus, residuals of prostate cancer, decreased bladder control, and impotence. Thereafter, the Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Joint Motion for Remand (JMR), the parties moved the Court to vacate the February 2019 Board decision. 1. The claims of entitlement to service connection for right ear hearing loss and tinnitus are remanded. Although the Board regrets the additional delay, the December 2019 Joint Motion indicates that a remand is required in this case due to perceived deficiencies in the record. First, the February 2019 Board decision relied on a February 2015 VA audiology consultation in making its decision, but the audiogram is not part of the record. On remand, an attempt should be made to associate the February 2015 audiometric findings with the claims file. Also, while not the basis of the Joint Motion, the Board notes that the Veteran has not yet been afforded a VA audiological examination for the purpose of determining whether a current right ear hearing loss and/or tinnitus may be related to his military service. As was noted in the February 2019 Board decision, the Veteran contends that his right hearing loss and tinnitus arose from his time in the Air Force, specifically the explosion of a B-52 and daily exposure to noise. Post-service VA treatment records show right ear hearing loss and subjective tinnitus as early as February 2015. Such is sufficient to trigger the duty on the part of VA to provide an examination as to these claims. Therefore, the Veteran should be afforded a VA examination so as to determine whether he currently has either right ear hearing loss and/or tinnitus and, if so, the nature and etiology of such disorders. 2. The claims of entitlement to service connection for residuals of prostate cancer, claimed as due to herbicide exposure in Thailand, as well as decreased bladder control and impotence, claimed to be associated with residuals of prostate cancer are remanded. The Veteran is seeking service connection for residuals of prostate cancer, to include decreased bladder control and impotence, which he claims is the result of herbicide exposure in Thailand. Notably, VA treatment records show that the Veteran was first diagnosed with prostate cancer in approximately February 2011 and subsequently developed incontinence and erectile dysfunction as early as February 2017. Pursuant to the December 2019 Joint Motion, the Board finds that further development is warranted with respect to his allegation that such disorders are due to herbicide exposure. The Veterans Benefits Administration (VBA) has published information obtained from the Department of Defense regarding the use of unspecified herbicides in Thailand during the Vietnam Era. See Compensation and Pension (C&P) Bulletin, May 2010. In the May 2010 bulletin, VBA indicated that it had 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. A primary source for this information was the declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Based Defense in Thailand. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), there was some evidence from other sources that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. The source and nature of this evidence was not disclosed. Given this information, some consideration is given to veterans whose duties placed them on or near the perimeters of Thailand military bases where the areas were cleared for security purposes. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. There is no presumption of exposure based solely on assignment to the Air Bases. However, if exposure is established, presumptive service connection of the diseases associated with herbicide exposure is available. Herbicide exposure may be established on a facts-found or direct basis if a United States Air Force veteran served at one of the air bases in occupations such as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter consistent with entering areas cleared for security reasons, as shown by military occupational specialty, performance evaluations, or other credible evidence. There is no presumption of exposure for simply being within a certain distance from the perimeter and herbicide exposure must be shown on a factual basis. The Veteran alleges that during his military service, he was exposed to herbicides via his service at two Royal Thai Air Force Bases. He has provided travel vouchers that show he was at both U-Tapao Royal Thai Air Force Base and Nakhon Phanom Royal Thai Air Force Base from February 1969 until February 1970. These bases are among those where some form of herbicide was used to clear areas for security. As was noted in the December 2019 Joint Motion, while the Veteran previously denied exposure to herbicides during his military service, in February 2015, the Veteran reported to a VA physician that, at one point in his military service, he was in an area that had been recently sprayed and that he could have eaten food/drink that was sprayed. Given this assertion, further development should be taken to determine the nature and extent of the Veteran’s exposure. First, request that the Veteran provide details regarding his alleged in-service herbicide exposure, to include his February 2015 allegation that he was in an area that had been recently sprayed and that he could have eaten food/drink that was sprayed. Thereafter, the case should be referred to the Joint Services Records Research Center (JSRRC) in an effort to verify his exposure to herbicides consistent with his service in Thailand. Also, the most recent VA medical records in the claims file are dated in July 2017. Therefore, all outstanding VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include any February 2015 audiometric findings as well as records dated from July 2017 to the present. 2. Request that the Veteran provide details regarding his alleged in-service herbicide exposure, to include his February 2015 allegation that he was in an area that had been recently sprayed and that he could have eaten food/drink that was sprayed. 3. After obtaining any outstanding records, schedule the Veteran for a VA audiological examination for evaluation of the nature and etiology of his claimed right ear hearing loss and tinnitus. (A) Identify all current right ear hearing loss and tinnitus disorders found to be present during the appeal period beginning March 2015. (B) For each diagnosis, the examiner should offer an opinion as to whether it is at least as likely not (50 percent probability or greater) that any diagnosed right ear hearing loss and/or tinnitus is caused by or is otherwise related to the Veteran’s active duty service, to include his conceded in-service noise exposure. 4. Send a request to JSRRC in an effort to verify the Veteran’s exposure to herbicides consistent with his service at both U-Tapao Royal Thai Air Force Base and Nakhon Phanom Royal Thai Air Force Base from February 1969 until February 1970. JSRRC should be provided with any necessary documentation, to include any relevant service records as well as any statements submitted by the Veteran detailing any duties that required him to be at or near the base perimeters. In this regard, in February 2015, the Veteran indicated that, during his military service, he was in an area that had been recently sprayed with herbicides and that he could have eaten food/drink that was sprayed. All requests and responses received should be associated with the claims file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the verification conducted). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.