Citation Nr: 20044537 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 17-60 563 DATE: July 2, 2020 ORDER Entitlement to service connection for prostate cancer and residuals of prostate cancer on a presumptive basis, due to conceded exposure to herbicide agents, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran was exposed to herbicide agents during his active service in Thailand. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for prostate cancer and prostate cancer residuals are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1967 to July 1969, at which time he received an honorable discharge. He reenlisted in July 1969, and was to be discharged in January 1975, however, in December 1972, he was absent without leave (AWOL), and was discharged under other than honorable conditions. Due to the nature of the Veteran’s discharge for his second period of service, the Board will not consider that period of service in this decision. However, the Veteran is eligible for statutory consideration of service connection for his first period of service. This case is before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s petition to reopen the previously denied claim of entitlement to service connection for prostate cancer. The Veteran’s notice of disagreement (NOD) was received in August 2017. The RO issued the statement of the case (SOC) in October 2017, and the Veteran’s VA Form 9, substantive appeal was received in November 2017. In an April 2019 decision, the Board reopened the Veteran’s previously denied claim of entitlement to service connection for prostate cancer, and then denied the claim on the merits. The Veteran appealed the denial of his service connection claim for prostate cancer to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted a Joint Motion for Partial Remand (JMPR), thereby vacating the Board’s April 2019 denial of the claim and remanding the claim for further development in compliance with the directives specified in the JMPR. Service Connection The Veteran contends that his prostate cancer is due to exposure to herbicide agents while stationed in Thailand during his period of service from April 1967 to July 1969. See, e.g. Statement in Support of Claim dated March 2010 (asserting that his prostate cancer is “due to exposure to Agent Orange in both tours [to Thailand and to Vietnam]). As noted, however due to the nature of the Veteran’s discharge from his second period of service, the Board is not considering that period of service, which included service in the Republic of Vietnam, in this decision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 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 or aggravated by service. See 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, 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); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain diseases associated with exposure to herbicide agents, including prostate cancer, will be presumed to have been incurred in service, even though there is no evidence of that disease during service, if the record shows that the Veteran (i) is presumed to have been exposed to herbicide agents in service or (ii) is found to have been exposed. 38 U.S.C. § 1116 (a); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Initially, the Veteran was diagnosed with adenocarcinoma of the prostate in March 2010. He underwent radiation treatment and prostatectomy to treat his cancer in August 2012, and currently receives treatment for prostate cancer residuals. In light of his diagnosis, and because prostate cancer is one of the enumerated diseases associated with herbicide exposure under 38 C.F.R. § 3.309(e), the issue before the Board is whether the Veteran was exposed to herbicide agents during service. If so, service connection may be presumptively awarded for prostate cancer. Although not binding on the Board, VA’s Adjudication Procedures Manual, M21-1, specifically notes that VA’s Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases during the Vietnam era (February 28, 1961, to May 7, 1975). This specifically includes consideration for Air Force veterans who served at one of the following Royal Thai Air Force Bases (RTAFBs): U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. See M21-1, Part IV.ii.1.H.4.a. The M21-1 provides that 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 evidence of daily work duties, performance evaluations, or other credible evidence, then herbicide exposure should be conceded on a facts-found or direct basis. See M21-1, Part IV.ii.1.H.4.b. The evidence of record, including the Veteran’s service personnel records, service treatment records (STRs) and lay testimony reflect that the Veteran was assigned to an overseas command in Thailand from May 1968 to May 1969, during the Vietnam era. These records further reflect that he was stationed at Camp Friendship, which borders Korat RTAFB, with the 172nd Transportation Detachment, and that he received medical treatment at Udorn RTAFB. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (confirming via a Contemporary Historical Examination of Current Operations (CHECO) Project report that Camp Friendship bordered the Korat Royal Thai Air Force Base on a section of the perimeter). Additionally, a July 2017 Joint Services Records Research Center (JSRRC) memorandum confirmed the Veteran’s service at Korat RTAFB, although the memorandum indicated that insufficient evidence was found to confirm Agent Orange exposure. The Veteran’s noted military occupational specialty (MOS) was Communications Specialist. See Military Personnel Record of Assignments. In a January 2017 Affidavit, he set forth a detailed history of his service in Thailand, noting that he was “primarily stationed” at Korat RTAFB and Nakhom Phanom RTAFB from June 1968 to May 1969, but that he went to all Air Force bases in Thailand as part of his assignments, including the bases at Don Muang, Korat, Nakhom, Phanom, Takhli, Ubon, Udorn, and U-Tapao. In his Affidavit, the Veteran further maintained that while stationed in Thailand, he worked for the 172nd transportation department, and that his job duties consisted of overseeing the communications part of the transportation company. He reports that with the MOS of Communications Specialist, he was often responsible for maintenance, installation, and transportation of communication gear, and as a result, he often worked near the flight lines of each base at which he worked. He reports that he often drove near the perimeter of the flight line or directly to the flight line, depending on the content and destination of each delivery. He reports that he often picked up deliveries from locals, which would require that he walk to the edge of the base to secure each delivery. He noted that it was common to walk near the perimeter of the base, as the perimeters were not off limits, and it was routine to be present near the perimeter regardless of the individual’s duties. In April 2020, the Veteran’s attorney submitted a detailed letter noting the Veteran’s various assignments during his period of active service from April 1967 to July 1969. The letter noted that while stationed at Korat and Nakhon Phanom RTAFBs in Thailand from June 1968 until May 1969, the Veteran was part of a transportation company in charge of moving ammunition to each of the Royal Thai Air Force Bases. In support of his claim, the Veteran additionally submitted several documents reporting on the use of herbicides and toxic chemicals at Korat RTAFB between 1967 and 1972. A 1971 Department of the Army Field Manual, entitled, “Tactical Employment of Herbicides,” indicates that herbicides were commonly applied around airfields, and that there was an approximately 500-meter drift zone around the point at which herbicides were applied from which the chemical emanated. A compilation entitled “Vegetation Control and other uses of Herbicides and Toxic Chemicals at Korat RTAFB” purportedly shows common areas at Korat which were located near the perimeter of the base. Specifically, the report demonstrates that being present in one of several locations, including the NCO club, the physical training area, recreation areas, and the living areas would have put one at or near the perimeter of the base. Maps included with these documents reflect that Camp Friendship abutted the perimeter of Korat RTAFB; that the physical training and recreation areas, as well as many living areas, were within approximately 35 meters of the Korat base perimeter; and that a substantial portion of Korat RTAFB was within the 500-meter drift zone from the flight line. Additionally, the Veteran reported that the roads used by various military vehicles would have brought him near the border with the perimeter of the base. Though the Veteran’s MOS did not involve military police or security duties, as noted in the M21-1, the evidence of record established that the Veteran was otherwise near the air base perimeter of various RTAFBs during his service in Thailand during the Vietnam era. This evidence includes the Veteran’s credible assertions of frequently being near the base perimeters, not only as required by his duties, but also as part of normal routines. Thus, the Board finds that the Veteran has provided sufficient credible evidence to concede his exposure to herbicide agents on a facts-found basis. Based on the foregoing, the Board has conceded the Veteran’s exposure to herbicide agents during his service in Thailand; thus, in the absence of affirmative evidence to the contrary, the Veteran’s prostate cancer, and residuals, is presumed to be due to such in-service exposure to herbicide agents. Furthermore, the evidence of record reflects that the Veteran’s prostate cancer was manifested to at least a compensable degree for VA purposes after discharge from military service. See 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 4.115b, Diagnostic Code 7528. Accordingly, resolving all reasonable doubt in the Veteran’s favor, service connection for prostate cancer and prostate cancer residuals is granted. Michael L. Wilson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.