Citation Nr: 21002976 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-53 722 DATE: January 19, 2021 ORDER Entitlement to service connection for prostate cancer is granted. FINDINGS OF FACT 1. The Veteran served in Thailand during the Vietnam War, and the evidence is at least in equipoise that he was exposed to herbicide agents in service. 2. The Veteran has been diagnosed with prostate cancer. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.104(c), 3.156, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1969 to May 1973, including service in Thailand. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony has not yet been added to the file, as this decision is being processed under the Board's One Touch hearing program. A copy of the transcript will be added to the Veteran's claims file in the ordinary course of business. 1. Entitlement to service connection for prostate cancer The Veteran contends that he had exposure to herbicide agents in Thailand while stationed at Ubon RTAFB. See May 2011 Statement in Support of Claim. The Board concludes that the Veteran has a current disability that is related to herbicide agent exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.307, 3.309. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also 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. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If a veteran was exposed to an herbicide agent during active service, certain diseases, including prostate cancer, will be service connected. These diseases need only manifest to a degree of at least 10 percent at any time after service, with the exception of chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, which must have 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. 38 C.F.R. § 3.307(a)(6)(ii). Certain veterans, albeit not those who served in Thailand during the Vietnam era, shall be presumed to have been exposed during such service to herbicide agents, including the herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Vietnam era veterans who served in Thailand are entitled to demonstrate actual exposure to herbicides. Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (holding that, even though the veteran did not serve in Vietnam, he remains "free to pursue his claim that he was actually exposed to herbicides while" on active service), overruled on other grounds, Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) (en banc); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (unavailability of a presumption does not foreclose service connection on a direct basis). The United States Court of Appeals for Veterans Claims has noted that "[t]he VA Compensation Service has acknowledged that there was 'some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.'" (citing Comp. & Pension Serv. Bull. (U.S. Dep't of Veterans Affairs, Washington, D.C.), May 2010, at 3). Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is not in dispute that the Veteran has a current diagnosis of prostate cancer. See October 2010 private treatment records. The Veteran has reported that he served with the 1st Combat Evaluation Group at Ubon RTAFB, that his building was near the perimeter fence, and that he drove in open vehicles right next to the fence on a daily basis. See May 2011 Statement in Support of Claim and January 2021 hearing testimony. Service records indicate that he served in Thailand, and that he served with the 1st Combat Evaluation Group. He testified that he was stationed at Ubon from approximately July through December 1972, and service personnel records reflect that his duties were in direct support of the Southeast Asia conflict during that time. The Veteran described in incident in which an F-4 crashed on take-off and he was required to take cover in a ditch near the fence for several hours. Id; see also January 2014 Statement in Support of Claim and September 2017 Correspondence and January 2021 hearing testimony. The Veteran submitted a picture of Combat Evaluation Groups Det 25 facilities at the end of the runway at Ubon RTAFB. In September 2017 the Veteran submitted pictures taken at Ubon including from the top of a guard tower near the end of the runway showing that the grass appears to be dead, and he testified that these were defoliated areas. He testified that one such area was near where he was working and testified regarding photos showing the proximity of the area where he worked to the perimeter fence. A photo of Combat Evaluation Groups Det 25 facilities has a similar “dead” look as the photo of grass by the runway. He noted off-base areas included in the photographs include ample vegetation. See September 2017 and October 2020 Correspondence. The Veteran also testified that he is the only member of his family to have developed prostate cancer. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that the Veteran was exposed to herbicide agents in service. The Veteran is competent to make statements as to his military service and history. The Board additionally finds the Veteran’s lay statements of working, driving, and seeking shelter along the perimeter fence to be credible and of probative value. The statements are internally consistent; consistent with other lay evidence of record; and consistent with the places, types, and circumstances of his service as an aircraft mechanic. The Veteran’s service treatment records (STRs) confirm his presence at Ubon RTAFB. His performance evaluations show his placement in the 1st Combat Evaluation Group. As the evidence is at least in equipoise that the Veteran had exposure to herbicides in Thailand during the Vietnam era, and the Veteran has a current diagnosis of prostate cancer, service connection for prostate cancer is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.