Citation Nr: 20037575 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 14-22 938 DATE: June 2, 2020 ORDER Entitlement to service connection for ischemic heart disease, diagnosed as coronary artery disease, claimed as due to exposure to herbicides, is granted. Entitlement to service connection for prostate cancer, claimed as due to exposure to herbicides, is granted. Entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer, is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to ischemic heart disease, is remanded. Entitlement to service connection for limited use of the left hand, to include as secondary to ischemic heart disease, is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during service in Thailand. 2. The Veteran has a current diagnosis of coronary artery disease. 3. The Veteran has a current diagnosis of prostate cancer disease. 4. The evidence supports a finding that the Veteran’s erectile dysfunction is related to his service-connected prostate cancer. CONCLUSIONS OF LAW 1. The criteria for presumptive service connection for ischemic heart disease, diagnosed as coronary artery disease, are met. 38 U.S.C. §§ 1110, 1116, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for presumptive service connection for prostate cancer are met. 38 U.S.C. §§ 1110, 1116, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 3. The criteria for service connection for erectile dysfunction, claimed as secondary to prostate cancer, have been met. 38 U.S.C. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2019, the Veteran testified at videoconference hearings at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. Transcripts of the testimony are associated with the claims file. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Significantly, the law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents (including prostate cancer) and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii). For purposes of applying the presumption of exposure to herbicide agent under 38 C.F.R. § 3.307 (a)(6)(iii), the service member must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam Era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); cert. denied, 555 U.S. 1149 (2009). There are no regulatory or statutory presumptions regarding herbicide exposure in Thailand; however, VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H. VA has 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. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. See M21-1, Part IV.ii.1.H.5.a. A section of this manual addresses herbicide exposure in Thailand during the Vietnam Era. (In this regard, the sense of the word “herbicide” as used in the manual is understood to mean “herbicide agent” as used in the regulation.) The manual directs rating specialists to concede herbicide agent exposure to those who served in the U.S. Air Force at a number of Royal Thai Air Force Bases (RTAFBs. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.10(q). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, a preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Ischemic Heart Disease, Prostate Cancer The Veteran seeks service connection for ischemic heart disease, diagnosed as coronary artery, and prostate cancer. The Veteran does not contend, and the evidence does not demonstrate, that he had these conditions during service. Instead, the Veteran contends that they are due to exposure to an herbicide agent during service; i.e., Agent Orange while in Thailand. Military personnel records reflect that the Veteran served as an administrative clerk at the Don Muang RTAFB from August 1969 to August 1970. Thus, the critical element as to whether the Veteran is entitled to the presumption of herbicide exposure is whether he served along the perimeter of the Don Muang RTAFB, and the Board is satisfied that the Veteran has established this fact. In March 2020, the Veteran received a videoconference hearing and testified that he was stationed at Don Muang Air Base. While at the base, he spent time with the air police and, to qualify, participated in a mile and a half run around the perimeter of the base. Although he was unsure if he patrolled the perimeter, the Veteran also testified that he was stationed at the gate on the perimeter with the air police. In October 2019, the Regional Office issued a formal finding of insufficient information to forward to the Joint Services Records Research Center (JSRRC). The Board notes that there is no basis in the record to question the Veteran’s credibility regarding his statements as to the nature and responsibility of his service while at Don Muang RTAFB. He clearly appears to have served in an area that was in close proximity to the base perimeter. 38 U.S.C. § 1154 (a). Moreover, there is no requirement that exposure to herbicides be definitively shown by personnel records. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). His accounting as to the type of duties he performed in close proximity to the perimeter of Don Muang RTAFB are deemed competent lay evidence of what the Veteran observed during his period of service in Thailand. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Upon review of the record, there is no evidence available that would refute the Veteran’s recollections or cause the Board to question his credibility. Therefore, based on his credible assertions and corroborating military personnel records, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s prostate cancer and ischemic heart disease are related to herbicide exposure during service in Thailand. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran is presumed to have been exposed to herbicide agents during active service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As he is presumed to have been exposed to herbicide agents, the presumption of service connection for prostate cancer and ischemic heart disease attaches. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e), 3.313. Accordingly, the Board finds that service connection for prostate cancer and ischemic heart disease is warranted on a presumptive basis. Erectile Dysfunction The Veteran received an Environmental Contaminant examination in October 2015 and his physician noted that he developed prostate cancer in 2005 which was treated with radiation. As a result of the treatment, he also developed erectile dysfunction. In light of the physician’s findings that the Veteran’s erectile dysfunction was caused by his prostate cancer, combined with the current finding that the Veteran’s prostate cancer is related to his presumed exposure to herbicides in Thailand, the Board concludes that service connection for erectile dysfunction is also warranted. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) (2017); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND Hypertension, Limited Use of the Left Hand As the Veteran’s medical records establish a diagnosis or persistent symptoms of hypertension and a left hand condition, and there is an indication, through assertions of the Veteran, that the disabilities may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of his claimed conditions. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA opinion to determine the nature and etiology of his hypertension. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that the Veteran’s hypertension had its onset in service or is otherwise the result of an incident in service, to include based on his exposure to herbicides while in Thailand. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s hypertension was caused or aggravated by his ischemic heart disease. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran’s hypertension has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Provide the Veteran with a VA opinion to determine the nature and etiology of any diagnosed left-hand disability. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that any diagnosed left-hand disability had its onset in service or is otherwise the result of an incident in service, to include based on his exposure to herbicides while in Thailand. The examiner is also asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed left-hand disability was caused or aggravated by his ischemic heart disease. Aggravation is defined for these purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. If the examiner finds that the Veteran’s left-hand disability has been permanently aggravated/worsened by his service-connected condition, the degree of worsening should be identified. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.