Citation Nr: 20057724 Decision Date: 09/01/20 Archive Date: 09/01/20 DOCKET NO. 15-02 198 DATE: September 1, 2020 ORDER Entitlement to service connection for prostate cancer (claimed as removal of prostate gland associated with prostatitis) as due to exposure to herbicide agents is granted. FINDING OF FACT Herbicide exposure is conceded as the Veteran served in the United States Air Force, was stationed at the Royal Thai Air Force Base (RTAFB) in Korat, Thailand, and was regularly near the base perimeter. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force (USAF) from June 1967 to April 1990. For his service, the Veteran received the Armed Forces Expeditionary Medal for South East Asia, the Vietnam Service Medal with one service star, the Air Force Overseas Long Tour Ribbon with two oak leaf clusters, Republic of Vietnam Gallantry Cross with Palm, and the Republic of Vietnam Campaign Medal. The issue is on appeal from a November 2011 rating decision. In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The November 2011 rating decision denied entitlement to service connection for prostate cancer. The Veteran appealed the denial. In a July 2018 decision, the Board determined that the issue of entitlement to service connection for prostate cancer, to include as due to exposure to an herbicide agent, did not warrant service connection on a presumptive, secondary, or direct basis. In January 2020, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum decision vacating the Board’s July 2018 decision and remanded the case for additional development and readjudication. Entitlement to service connection for prostate cancer (claimed as removal of prostate gland associated with prostatitis) as due to exposure to herbicide agents The Board notes that the Veteran’s claim for prostate cancer as secondary to service-connected prostatitis was dismissed by the Court. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309 (e). The Board notes that the Veteran’s service personnel records show that he served in Thailand at the RTAB in Korat from October 1972 to October 1973 with a military occupational specialty (MOS) of Chief of Base Recreational Services. These diseases include prostate cancer. 38 C.F.R. § 3.309(e). The VA has established specific procedures for verifying exposure to herbicides in Thailand during the Vietnam Era. The VA Adjudication Procedures Manual (M21-1) is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). 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, as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” 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. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of Korat, Ubon, Nakhon Phanom, Udorn, Takhli, U-Tapao, 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 MOS, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C. 10(q). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). The Veteran underwent a prostatectomy procedure to remove a cancerous prostate in December 2010. The record reflects the Veteran served at Korat RTAFB, Thailand, from October 5, 1972 to October 6, 1973. At the 2017 hearing, the Veteran reported that while stationed in Thailand his daily activities as chief of recreational services included spending time at the perimeter of Korat RTAFB. The Veteran reported spending significant time at the ball fields and additional duties that required him to routinely visit the perimeter. The Veteran’s service record indicates he aggressively upgraded facilities and improved operating procedures during his service at Korat RTAFB. The Veteran was noted to have established a modeling hobby shop and the most extensive competitive sports program in Thailand. The Veteran was also noted to have duties as a division ground safety officer, squadron explosive safety office, area fire marshal for all division facilities, vehicle control office for RAF vehicles, and Assistant Chief of Special Services. Although there is no direct record of assignment to perimeter duty, the Board finds the Veteran’s consistent assertions regarding time spent near the perimeter of the Korat Royal Thai Airbase to be credible. The statements of the Veteran are corroborated by the Veteran’s service records, as well as by maps showing where the Veteran worked. In addition to the Veteran’s testimony that he performed duties around the perimeter of the base related to his primary duty, the Veteran’s service records specifically indicate he served on the security police squadron. It is also worth noting that the Veteran’s performance reports repeatedly express glowing reviews of his performance and personal character. In a performance review during his time at Korat, the Veteran was noted to show honesty and integrity. The Veteran was also noted to be totally loyal to superiors, scrupulously honest, and described as performing in an outstanding manner in a demanding combat environment. Therefore, as there is no basis on which to question the Veteran’s credibility, the Board finds that the Veteran was exposed to herbicide agents while he was stationed at the Royal Thai Air Bases in Korat during the Vietnam era. See M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10(q). Affording the Veteran the full benefit of the doubt, the Board finds that he was exposed to herbicides while serving in Thailand and that his prostate cancer can be presumed to be related to herbicide exposure in service. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the Veteran’s claim for service connection for prostate cancer is granted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.