Citation Nr: 20054867 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 17-35 282 DATE: August 19, 2020 ORDER Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during service. 2. Prostate cancer did not have its onset during active duty or within one year of separation from service and is not otherwise related to active duty. CONCLUSION OF LAW The criteria for service connection for prostate cancer, to include as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1960 to May 1963. In April 2019, the Veteran provided testimony at a Board video conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. In July 2019, the Board issued a decision that denied the Veteran’s claim of entitlement to service connection for prostate cancer, to include as due to exposure to herbicides. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) with respect to the July 2019 Board decision to vacate and remand the claim back to the Board, which was granted by the Court. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, is denied. The Veteran contends that service connection for prostate cancer is warranted because it was incurred in service or otherwise a result of service, to include exposure to herbicides while serving in Korat Royal Thai Air Force Base (RTAFB), Thailand. In the April 2020 JMR, the parties had found that the Board erred in its July 2019 decision, which denied entitlement to service connection for prostate cancer, to include as due to exposure to herbicides, by not providing an adequate statement of reasons or bases for its determination of whether the Veteran was exposed to herbicides while serving at Korat RTAFB. Specifically, the Veteran asserted that he was exposed to herbicides while serving at Korat because his military occupational specialty (MOS) as a transportation movement specialist had him unloading cargo from planes and transporting cargo, including frequent transport over and near the perimeter of the base. He also noted that he slept approximately 50 yards from the perimeter of the base in an open-air barracks. The parties found that the Board’s discussion was insufficient and that the Board appeared to determine that because the Veteran did not have one of the specifically enumerated MOS, it could not be conceded that he was exposed to herbicides at Korat and the Board failed to consider whether the Veteran on may still have been exposed based on the facts found regarding his assertions of potential exposure. Therefore, the parties found remand is warranted for the Board to provide an adequate statement of reasons or bases for its determination of herbicide exposure, properly considering whether the Veteran’s MOS and/or duties he performed may have put him at or near the perimeter and his assertions regarding his sleeping quarters, consistent with the JMR. The terms of a Joint Motion will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed by the Board. See Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014). Therefore, the crux of the JMR involved a finding by the parties that the Board had provided inadequate reasons and bases, as discussed above. The Board will provide a discussion on the facts cited by the parties below with a primary focus on the Veteran’s purported exposure to herbicides on the perimeter of Korat RTAFB. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for residuals of prostate cancer. The reasons follow. The Veteran was diagnosed with prostate cancer in October 2009, reflected in his private treatment records and confirmed by the VA examiner to have been in remission in the February 2015 VA examination report. Accordingly, the first element of service connection is met. However, the Board finds that service connection for prostate cancer is not warranted because while prostate cancer is a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e), the Veteran is not presumed to have been exposed to herbicide agents, to include Agent Orange, while in service. Further, the medical evidence of record does not establish the required nexus between the disability and the Veteran’s military service. Pertinent VA law and regulations provide that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to certain designated herbicide agents (i.e., Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). The diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Pursuant to its duty to assist, VA has established a procedure for Regional Offices to verify exposure to herbicides in Thailand during the Vietnam Era. See Compensation and Pension (C&P) Bulletin, May 2010. In the May 2010 bulletin, Compensation and Pension documented 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 documented that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), Compensation and Pension has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. Given this information, Compensation and Pension has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a “facts found or direct basis” should be extended to those veterans. Significantly, Compensation and Pension stated that “[t]his allows for presumptive service connection of the diseases associated with herbicide exposure.” Compensation and Pension concluded that herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluations, or other credible evidence. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. In support of his claim, the Veteran has proffered several Board decisions, which involve other veterans’ service-connection claims being granted based on exposure in Korat RTAFB, that cited this and other information issued by the Veterans Benefits Administration and contained in the in the VA Adjudicative Procedures Manual (M21-1). In DAV v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held the M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules. The Federal Circuit specifically noted that the Board is not bound by the M21-1. See also Overton v. Wilkie, 2018 U.S. App. Vet Claims LEXIS 1251). It stated that when relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses and if, after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. The Board notes that Board decisions are not precedential, and “previously issued Board decisions will be considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303. “Each case presented to the Board will be decided on the basis of the individual facts of the case.” Id. Thus, while considered, the Board finds that previous Board decisions of other veterans are of limited probative value in deciding the Veteran’s present claim. The Veteran does not claim and the record does not support a finding that the Veteran served in Vietnam, and thus a presumption of exposure to herbicides based on service in Vietnam is not applicable. As mentioned above, the Veteran’s claim of exposure to herbicides is based upon his service in Thailand. During the April 2019 Board video conference hearing, the Veteran testified that during service, his unit, the 5th Transportation Battalion under 9th Logistics Command, was in Thailand for approximately 6 months in 1962. The Veteran stated that his job was to unload the cargo as it came into Korat from C-130 and C-124 airplanes. Moreover, the Veteran explained that he went outside the perimeter of the Korat base and back and that he drove duce-and-a-halves, three-quarter ton trucks, and jeeps, to get the cargo, personnel, or supplies on a daily basis. The Veteran also reported that his sleeping quarters were about 50 meters away from the perimeter road. He testified that he saw “people with backpacks spraying [the foliage around the perimeter]” and never saw anyone use a lawnmower. He indicated that he was anywhere from 30 to 50 yards from the sprayers in the tent. See April 2019 hearing transcript. See also September 2015 correspondence; December 2015 notice of disagreement (NOD); June 2017 substantive appeal (VA Form 9); September 2019 correspondence; June 2020 statement In September 2015, along with his claim, the Veteran proffered a newspaper article, which documents his participation with the 9th Logistical Command in Exercise Air Cobra, a one-week Southeast Asia Treaty Organization (SEATO) training maneuver in Thailand. In a September 2015 statement, the Veteran also reported that he was issued a passport in April 1962 from the American Consular Unit in Naha, Okinawa, and informed that his tour of duty had been extended and was informed that he was going on a classified assignment and was ultimately assigned to work with the U.S. Air Force and Thai Air Force in Korat until he returned back to the United States in October 1962. The Veteran stated that he worked at the air base unloading and unloading all U.S. military planes as they flew in and out of the Korat Air Base. In a September 2015 buddy statement, a fellow soldier, J.S., reported that the Veteran served in the same MOS and that they were deployed together to Korat, Thailand, in April 1962, where they were trained to operate a forklift and spent the remainder of their tour loading and unloading military airplane transports, as well as driving trucks on and off base to deliver personnel and cargo that arrived at the base. The Veteran also submitted correspondence that indicates that the 9th Logistical Command deployed to Thailand in May 1962. The Veteran reported that he and J.S. were the only two that he remembered being trained to operate forklifts to load and unload planes. He stated that most of the cargo they handled was in boxes, metal containers, and cans with the Army olive green color and numbers on the label. He noted that they never questioned what they were handling, but he remembered ending a lot of the shipments to places in Ubon, Udorn, and Sakon Nakon, Thailand, and to other places in Cambodia and Vietnam. A March 2017 Report of General Information documents that Veteran was contacted by phone to confirm information of his claimed herbicide exposure. The Veteran verified that the period of his claimed exposure was July to August 1962 and that he transported materials and chemicals from Korat RTAFB to other locations. See also March 2017 VA 21-3101 Request for Information. In the Veteran’s June 2017 substantive appeal, he stated that during service at Korat Air Force Base in Thailand, he drove vehicles anywhere he was told to go and delivered everything he was told to. He also reported sleeping in the barracks under mosquito nets with all of the windows on the barracks open because they did not have air conditioning in the barracks. He stated that it was not unusual to walk by or drive past vehicles and/or other military personnel with backpack sprayers as they sprayed some type of chemicals on the vines, weeds, grass, etc. when we were driving by transporting stuff or when we were walking around the perimeter working or going into town. He noted that the chemicals would make his nose and mouth burn and that it had a sour-like odor. In correspondence submitted in May 2018, the Veteran reported that remembered people spraying “some type of chemical” to kill weeds, vines, grass, etc., that smelled bad and burned the nose or eyes, which he could also smell when the wind blew at night or while out doing work. He indicated that he remembered sleeping in tents at night with the walls rolled up when it was not raining. The Veteran proffered a picture of himself with a tattoo on his right arm of a panther’s head with the words “Okinawa ‘61” and “Thailand ‘62,” several pictures of the 5th Transportation Battalion in Okinawa, trip from Naha, Okinawa to Subic Bay, Philippines, and pictures at Clark Air Force Base, Philippines, prior to flying to Thailand. Additionally, he submitted various materials, including an old map of the Thailand installations that identifies the location of Camp Friendship, Korat Airfield, 9th Log. Headquarters, and Korat Railway Station. He reported that his duties involved traveling on the airfield, back and forth between the Air Head (Korat Air Base) to the Rail Head (Korat Railway Station), and everywhere else on and around the base to be sure that everything coming into Korat was delivered. The Veteran also submitted a Wikipedia article, “Korat Royal Thai Air Force Base,” another article, “Korat Royal Thai Air Force Base Historical Brief,” and a Department of Defense (DoD) Directive 5200.10, in support of the presence of the 9th Logistics Command at Camp Friendship / Korat. He also included a photograph showing the type of “pallet tents” he stayed in during his tour of duty in Korat, Thailand in 1962. The Veteran has submitted a list of Army Post Office (APO) number locations during the Vietnam war, which reflects that APO 33 is Korat, Thailand and APO 331 is Sukiran (Fort Buckner, Naha, Okinawa). The Veteran also referenced a chronological record of military service, a DDA Form 24 – service record, USARYIS Form 456 Debriefing Statement, and DA Form 1 Morning Report, from his military personnel records, which reflect that he was stationed at APO 33 with the 5th Transportation Battalion (Movement Control) under the HQ 9th Logistics Command at Korat, Thailand. Upon review of the statements and materials submitted by the Veteran, the Board acknowledges the Veteran’s deployment to Korat RTAFB during the Vietnam era, along with the May 2010 C&P Bulletin, DOD document titled, “Project CHECO Southeast Asia Report: Based Defense in Thailand,” the weight of evidence is that herbicides of some formulation were used and applied by base management personnel using hand-held or vehicle mounted units either during the Veteran’s service at Korat or with residue persisting in defoliated areas during that service. Moreover, the Veteran testified the herbicides were sprayed mostly by people with backpacks but that he also saw trucks, which sprayed pesticides for mosquitos. See April 2019 hearing transcript. Resolving any doubt in the Veteran’s favor, the Board finds that the designated herbicide agents may have been present at Korat RTAFB in sufficient concentration and formulation to qualify as the agents for which the presumption of causation of certain diseases are available. Contrary to the Veteran’s contentions, the Board finds that “being near” the perimeter of Korat RTAFB does not necessarily constitute physical contact with herbicide or its residue such that there was some causative effect. There is no presumption of exposure but rather the requirement that the Veteran demonstrate that his disability was caused by a disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Here, it is actual physical contact the herbicide agents that is necessary. A November 2015 VA memorandum reflects that the Joint Services Records Research Center (JSRRC) found that the Veteran’s herbicide exposure was not verified. It was noted that the JSRRC reviewed the Veteran’s personnel and service treatment records. Further, while the Veteran stated that he was exposed to herbicides at Korat RTAFB while handing incoming shipment to the base, a Personnel Information Exchange Systems (PIES) 050 was negative for exposure to herbicides, and it was determined that the Veteran’s MOS would not have exposed him to herbicides along the base perimeter. Lastly, it was stated that to date, the JSRRC has found no evidence that indicates he was exposed to herbicides. A Defense Personnel Records Information Retrieval System (DPRIS) request was made in May 2017. The 1943 to 1986 history submitted by the 5th Transportation Battalion and the 1960 to 1962 history submitted by the 9th Logistical Command were reviewed. It was confirmed that the 9th Logistical Command deployed to Thailand in May 1962 and more units were sent to Thailand early in 1962 to support SEATO Exercise Air Cobra, however, the histories did not specifically document that the Veteran or personnel assigned to the 5th Transportation Battalion were deployed to Thailand or transported chemicals or herbicides. Further, the Joint Services Records Research Center (JSRRC) reviewed a copy of U.S. Air Force Historical Research memorandum for the Department of Veterans Affairs dated August 11, 2015, which pertained to the U.S. Air Force installations operating in Thailand from 1963 through 1976, which included Korat RTAFB. The memorandum concluded, “no documentation or evidence has been found in the holdings of the Historical Research Agency showing that tactical herbicides, such as Agent Orange, were ever used on any USAF installations in Thailand for vegetation control during the Vietnam Era.” As the Veteran’s exposure to Agent Orange is based on being on or near the perimeter of the Korat RTAFB, the Board finds that this is speculative, and concludes the evidence proffered is insufficient to show his actual exposure to herbicides or Agent Orange. There is no presumption for veterans that were within a certain distance or a spray zone [of the perimeter] at Korat RTAFB. The Veteran has not provided competent evidence in support of his contention that the open air “pallet tents” sleeping quarters exposed him to herbicides from a drift within a certain distance overspray zone nor that any “bad smelling chemical” he reportedly smelled was actually herbicides or Agent Orange. While the M21-1 specifically mentions security police and security patrol dog handlers, the Board distinguishes these MOSs from the Veteran’s MOS as a transportation movement specialist in reference to daily work duties near the air base perimeter. The tactical employment of herbicides for the defoliation of heavily vegetated areas is the primary means of obtaining visual observation of enemy forces, facilities, roads, ambush sites, infiltration routes, and other enemy locations from the air, ground, or water. The Board finds that Veteran has credibly and consistently reported that as a part of the duties of his MOS, he loaded and unloaded cargo from planes, transported the cargo with various vehicles, and crossed the perimeter to transport personnel and deliver cargo/supplies. However, the Board believes that strategically such duties would not take place in a defoliated area that is intended to remain clear so as to engage any intruders. Thus, MOSs, such as security police and dog handlers, by their respective natures, place such personnel at a higher propensity to enter such defoliated areas guarding or patrolling the perimeter from intruders, which would reflect actual, as opposed to presumed, exposure to sprayed herbicides, to include overspray or drift. The Veteran’s MOS involving the loading and unloading of personnel, cargo, and supplies to and from planes to various vehicles would be in secured areas not susceptible to enemy intrusion and thus would not put him in directly in contact with the defoliated areas, such that an MOS of security police would have put the person in contact with a defoliated area on the perimeter. Moreover, there is no presumption of “secondary exposure” to herbicide agents based on being near or working on aircraft that flew over Vietnam or handing of equipment that was once used in Vietnam. The Board finds that the intent of the M21-1 manual is not to guide adjudicators to concede herbicide exposure to all veterans who served at Korat RTAFB, as VA has not conceded herbicide or Agent Orange exposure to all veterans who served at Korat RTAFB. Given the emphasis on the duties of particular MOSs, the Board finds that crossing the perimeter alone or sleeping in quarters near the perimeter do not constitute a sufficient showing of actual exposure to herbicides. Further, the M21-1 is an internal manual used to guide VA adjudicators and does not establish substantive rules, and the Board is not bound by the M21-1. To the extent that the Veteran asserts any cargo he handled or 55 gallon drum barrels stored on Korat RTAFB contained herbicides / Agent Orange, he has not offered affirmative evidence that such cargo or barrels contained herbicides / Agent Orange or stated that he came into direct contact with the barrels. See buddy statement (T.M.) dated March 2018 with attached photographs. Further, there is no proffered evidence that the Veteran would have been directly exposed based on solely upon storage of herbicides / Agent Orange in the handled cargo or drum barrels. Thus, given the speculative nature, the Board finds that the Veteran’s contentions are of diminished probative value and do not support a finding of his direct exposure to herbicide agents including Agent Orange based on the handling and transportation of cargo in Korat RTAFB. Accordingly, in the absence of credible and probative evidence of actual exposure to herbicide agents, the Board finds that the Veteran was not exposed to herbicide agents during his military service. The Board has also reviewed the evidence to include service treatment records; personnel records; and post-service medical records for evidence that prostate cancer was incurred in service or otherwise caused by service and finds the preponderance of the evidence is against such relationship. For example, a July 1961 treatment record documents an isolated in-service complaint of prostatitis; however, a subsequent airborne physical examination conducted in August 1961 again documents a normal evaluation of the genitourinary system, without noted defects or diagnoses, including prostate cancer. The Veteran’s April 1963 Report of Medical Examination at separation reflects a normal clinical evaluation of the genitourinary system, without noted defects or diagnoses, including prostate cancer. In the accompanying April 1963 Report of Medical History, the Veteran denied any related symptoms, including frequent or painful urination. Further, the Veteran checked “no” when asked if he “ever had any illness or injury other than those already noted.” The Board accords high probative value and credibility to these documents, as the Veteran completed them contemporaneously with service. Thus, the Board finds that the preponderance of the evidence is against an in-service occurrence or an event relating to prostate cancer. The evidence of record also does not show that the Veteran’s prostate cancer manifested to a degree of 10 percent disabling or more within one year from either his May 1963 separation from service and a presumption of service connection based on the chronicity of prostate cancer is not appropriate as he was diagnosed several decades later in October 2009. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). Following examination in December 2015, the VA examiner concluded, based upon a review of the claims file, that the Veteran’s prostate cancer was less likely than not caused by the claimed in-service injury, event, or illness. The examiner noted that the service treatment records contained an isolated incident of acute prostatitis in July 1961, however, subsequent records were silent for any additional prostate issues. He added that the Veteran was diagnosed with prostate cancer by biopsy in October 2009, almost 50 years after this documented episode of acute/transient/self-limited prostatitis in service and indicated that there is no evidence to suggest that the isolated episode of prostatitis during the Veteran’s active service caused his prostate cancer, which was diagnosed almost 50 years later. Lastly, the Board has considered several statements from medical professionals submitted by the Veteran. In June 2020, the Veteran submitted a statement from Dr. L.S. stating that the information found on Veterans and Agent Orange Update 1996 should be reviewed, which should provide a link between the Veteran’s neuropathy and exposure to Agent Orange. The Veteran also proffered an April 2018 letter from his treating urologist that it is at least as likely as not that the Veteran’s prostate cancer was incurred or aggravated during his active service, as the Veteran was exposed to herbicides during his tour in Thailand in 1962 as indicated by his personal testimony. However, as these two opinions are based upon the inaccurate factual premise that the Veteran was exposed to herbicide agents in Thailand, based on his own reports, they are not probative, as a medical opinion based on an inaccurate factual premise has no probative value. The Veteran has also submitted a May 2018 letter from J.S.’s urologist, who reported that J.S. had exposure to Agent Orange based on his own account. The Board has considered above buddy statements from J.S., however, as each case presented to the Board will be decided on the basis of the individual facts of the case, the Board finds that a nexus opinion from J.S.’s urologist linking prostate cancer to J.S’s own reported exposure to Agent Orange is not probative in the Veteran’s case. The Veteran has asserted that his prostate cancer is related to service; however, the Veteran has not offered probative and competent evidence establishing a nexus between the prostate cancer and service; to include exposure to herbicides. Lay evidence may be competent to establish medical etiology or nexus. However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” A diagnosis of prostate cancer requires specialized training for determinations as to diagnosis and causation, and is therefore, not susceptible to lay opinions on etiology. Therefore, the Board finds that the lay assertions proffered by the Veteran cannot establish a nexus between the prostate cancer and service. The Board accords the most probative weight to the opinion by the December 2015 VA examiner. The examiner provided a medical opinion supported by well-reasoned rationale after he reviewed the claims file, including consideration of the in-service episode of prostatitis, which he specifically addressed. Absent competent, credible, and probative evidence of a nexus between the Veteran’s prostate cancer and service, the Board finds that the Veteran’s prostate cancer was not incurred in service and is not otherwise related to active service, as the Veteran has not offered competent medical evidence in support of his claim. Accordingly, service connection for prostate cancer, to include as due to exposure to herbicides, is not warranted. The preponderance of the evidence is against the claim of service connection for prostate cancer, to include as due to exposure to herbicides, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, 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.