Citation Nr: 21004704 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-16 166 DATE: January 27, 2021 ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. 2. Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure. ORDER Entitlement to service connection for diabetes mellitus, type II, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to service connection for prostate cancer, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran was diagnosed with diabetes mellitus, type II, one of the diseases listed as being presumptively associated with exposure to certain herbicide agents 2. The Veteran was diagnosed with prostate cancer, one of the diseases listed as being presumptively associated with exposure to certain herbicide agents. 3. The evidence of record is at least in equipoise as to whether the Veteran was exposed to herbicide agents while serving at U-Tapao Royal Thai Air Force Base (RTAFB). CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for prostate cancer, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force from April 1969 to June 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The Veteran was afforded a Video Conference hearing before the undersigned Veterans Law Judge (VLJ) in July 2020. A transcript of the hearing has been associated with the Veteran's electronic claims file. The Board notes that as there is considerable overlap in the applicable law and evidence for the Veteran's claims of entitlement to service connection for diabetes mellitus, type II and prostate cancer, the Board will discuss the two service connections claims together. 1. Entitlement to service connection for diabetes mellitus type II, claimed as due to herbicide exposure. 2. Entitlement to service connection for prostate cancer, claimed as due to herbicide exposure. The Veteran contends that he is entitled to service connection for his diabetes mellitus type II and prostate cancer as a result of his alleged exposure to herbicides while serving in Thailand. See October 2015, Notice of Disagreement (NOD); See also November 2015 Statement in Support of Claim, VA-Form 21-4138; See also July 2020 Board Hearing transcript. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If a Veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more, the Veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309(e). Diabetes mellitus, Type II, and Prostate Cancer are enumerated diseases. If a veteran did not serve in the Republic of Vietnam during the Vietnam era, actual exposure to an herbicide agent must be verified through the appropriate service department or other sources in order for the presumption of service connection for an herbicide agent related disease under 38 C.F.R. § 3.309 (e) to be applicable. Exposure to an herbicide agent is not presumed in such instances. However, once exposure to an herbicide agent has been established by the evidence of record, the presumption of service connection found in 38 C.F.R. § 3.309 (e) for herbicide agent related diseases is applicable. Herbicide Exposure (Thailand) VA has determined that there was significant use of herbicides on the fenced-in perimeters of bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense (DoD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." VA Compensation Service has acknowledged that veterans who served in Thailand during the Vietnam era may have been exposed to tactical herbicides procured from Vietnam, or commercial herbicides of much greater strength and with characteristics of tactical herbicides. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016). 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, Takhil, Korat, and Don Muang. If a veteran served on one of these 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 (military occupational specialty), 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. Turning to the evidence of record in this case before the Board: Medical evidence confirms a diagnosis of diabetes mellitus, type II. See February 10, 2004 VA treatment record. The Veteran’s internist has indicated that the Veteran is being treated for diabetes mellitus, type II with multiple insulin injections and oral medications. See October 2014 Correspondence; See also March 2015 Correspondence (Internist). Medical evidence also confirms a diagnosis of prostate cancer. See November 25, 2013 VA treatment record. The Veteran’s internist also has indicated that the Veteran has been treated with radiation for his prostate cancer in 2012. See October 2014 Correspondence (Internist); See also March 2015 Correspondence, referencing treatment for prostate cancer since 2011. This case turns on whether there is credible evidence that places the Veteran at or near the perimeter of the Royal Thai Air Force Base of U-Tapao to warrant presumptive service connection for his diagnose diabetes mellitus, Type II and prostate cancer. The Veteran served as a Ground Crew Member at the Royal Thai Air Force Base (RTAFB), in U-Tapo from January 26, 1971 to January 26, 1972. See DD-214 (Jet Engine Mechanic); Military Personnel Record; See also July 23, 2015, VA Memorandum (JSRRC). The Veteran was responsible for all maintenance performed on aircraft, pre-flight, launch and termination of recovery actions from the recovery team. The Veteran performed weekly records check of AFTO Form 781 coordinating with Plans and Scheduling and Material Control. See Military Personnel Record (Performance Report). Additionally, from Apr 29, 1971 to October 28, 1971, the Veteran performed duties in direct support of the Southeast Asian Conflict. See Military Personnel Record (Performance Report/Facts and Specific Achievements). At his July 2020 Video Conference Board Hearing, the Veteran testified that as a B-52 maintenance crew chief, he did not see any trees or shrubs anywhere, nor vegetation. The Veteran testified that the location of his barracks, were on the edge of the Air Force Base. The Veteran testified that there were no barracks behind him. The Veteran testified that his work duties on the flight line as B-52 maintenance crew member constantly placed him behind the blast fence where the B-52’s raced their engines. The Veteran testified that there was no vegetation in this area. The Veteran testified that he was stationed at this Air Force base for six months. See July 9, 2020 Board Hearing transcript, pgs. 5-6. The Veteran also testified that at times, he stepped out in the back of his barracks to smoke cigarettes. The Veteran testified that when he worked on the flight line he was everywhere, but he did not have any security duties. The Veteran’s testified that his responsibilities were primarily maintenance. The Veteran testified that he never witnessed the actual spraying of herbicides. Id. at pgs. 7-9. In this July 2020 Board Hearing, the Veteran also testified that he travelled off the Air Force Base to go downtown, Thailand. The Veteran testified that he would walk to the front Security Gate of the RTAFB base and wait for a truck (taxi), to take him to downtown Thailand. The Veteran testified that around this Security Gate, it was barren of any vegetation. The Veteran testified that there was “no vegetation at all.” Id. at pgs. 9 -11 & 13. The Board observes that the Veteran also testified that some members of his family have diabetes mellitus, and some do not. Id. at pg. 11. The Board is also cognizant that the Veteran submitted a Map of the U-Tapao, Airfield in Thailand, identifying the location of his work site and the location his barracks. See March 29, 2017 Correspondence (Map). The Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In addition, the Board must consider historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere. Parseeya-Picchione, 28 Vet. App. at 171, 176. The Board finds the Veteran’s July 2020 Board Hearing testimony, as to the place, types and circumstances of his service in Thailand credible. On a direct/facts found basis, this testimony places the Veteran at or near the perimeter when considering his duties on the flight line, his barracks being on the edge of the base (smoking cigarettes in the back of his barracks), and specifically his testimony regarding travel outside the U-Tapao Airforce Base, walking through the Security Gate, observing the absence of vegetation, while waiting for a truck (taxi) to take him to downtown Thailand. See July 2020 Board Hearing transcript, pgs. 7- 11 & 13. The Board notes that the Veteran is competent to report the circumstances of his service. The statements of the Veteran are competent, credible, and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § § 1154 (a); 38 C.F.R. § 3.303 (a). Unfavorable Evidence Continuing our discussion of the evidence of record: In a July 2015 VA Memorandum, the Joint Services Records Research Center Division (JSRRC) issued a formal finding of a lack of information required to verify Agent Orange exposure. The JSRRC confirmed the Veteran’s service in U-Tapao, Thailand from January 26, 1971 to January 26, 1972. Personnel records confirmed that the Veteran’s Military Occupational Specialty was Jet Engine Mechanic. The JSRRC reviewed the Veteran’s evidence of exposure to herbicides while serving at U-Tapao Air Base. In relevant part, the JSRRC concluded that although the Veteran was in Thailand, there is no evidence in the Veteran’s personnel records or from PIES to indicate he was in Vietnam. In addition, there is no evidence that the Veteran was exposed to herbicides during his service. There is no evidence that the Veteran served as a security policeman, security patrol dog handler, member of a security police squadron otherwise served near the air base perimeter. Based on these facts we cannot confirm the Veteran’s exposure to Agent Orange and any further attempts to prove this are considered futile. See July 23, 2015 Memorandum. Analysis When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the record clearly establishes that the Veteran served on a RTAFB during the relevant time period in question (February 28, 1961, to May 7, 1975). The Veteran's DD-214 and Military Personnel Records show that he served as a Ground Crew Member/Jet Engine Mechanic of the RTAFB. See DD-214. Further, the Veteran’s credible July 2020 Board Hearing testimony shows that the Veteran’s duties on the flight line and the circumstances of his service (including trips to downtown Thailand, walking through the Air Force security gate and waiting for a taxi, while observing the absence of vegetation) placed him on or near the perimeter of that RTAFB. See July 9, 2020 Board Hearing transcript, pgs. 7- 11 & 13. The Board is also cognizant of the JSRRC formal finding regarding a lack of information required to verify Agent Orange exposure. See July 23, 2015 Memorandum. Here, considering the Veteran’s competent and credible testimony which places him on or near the perimeter of that RTAFB, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran was exposed to herbicide agents while serving at U-Tapao Royal Thai Air Force Base (RTAFB). Resolving all reasonable doubt in favor of the Veteran, and based on the facts found, the Board has determined that the Veteran was exposed to herbicide agents, to include Agent Orange, during his active duty service in Thailand. 38 C.F.R. § 3.102. As such, the Veteran's diabetes mellitus, Type II and prostate cancer are presumed to have been caused by his herbicide agent exposure as found herein. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). S Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.