Citation Nr: 21062219 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 10-05 808 DATE: October 6, 2021 ORDER Entitlement to service connection for cause of death is granted. FINDING OF FACT 1. The Veteran passed away on March 9, 2008, due to rectal and prostate cancers. 2. The most probative evidence of record establishes the Veteran served on a temporary duty assignment as a fuel specialist at the U-Tapao Royal Thai Naval Air Force Base (RTNAFB) in Thailand from April 13, 1967, to July 17, 1967. 3. Resolving all reasonable doubt in the Veteran's favor, the Veteran's military occupational specialty (MOS), daily work duties, and selection for frequent special assignments establish that he likely served near the U-Tapao RTNAFB base perimeter, and, thus, was exposed to herbicide agents during his active service. 4. The medical evidence establishes the Veteran was diagnosed with prostate cancer. 5. The Veteran's prostate cancer is presumed related to his exposure to herbicide agents while service in Thailand. 6. The Veteran's prostate cancer substantially or materially contributed to the cause of death. CONCLUSION OF LAW 1. The criteria for service connection for prostate cancer, as presumed related to active military service, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5107(b); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.307, 3.309. 2. 2. The criteria for service connection for the cause of the Veteran's death have been met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from September 1964 to September 1968, during the Vietnam Era. He received the National Defense Service Medal, Air Force Good Conduct Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal, and Air Force Longevity of Service Award. The Veteran passed away on March 9, 2008. The Appellant is his surviving spouse. In June 2012, the Appellant testified before the undersigned at a Board videoconference hearing; a transcript has been associated with the claims file. This claim has a long and extensive procedural history as detailed in the March 2019 Board decision. In that March 2019 decision, the Board denied the claim for service connection for the cause of death. The appellant timely appealed the Board's March 2019 decision to the United States Court of Appeals for Veterans Claims ("CAVC"). CAVC reversed the Board's March 2019 decision and remanded the case to the Board. CAVC directed the Board to properly identify the location of the U-Tapao base perimeter and to determine whether the tasks associated with the Veteran's MOS brought him near the base perimeter, including whether any fuel storage areas or aircraft refueling areas were near the base perimeter. 1. Entitlement to service connection for cause of death The Veteran, prior to his death, contended that he was exposed to herbicide agents that resulted in his prostate cancer while serving in the Republic of Vietnam, or, in the alternative, while serving at U-Tapao Royal Thai Naval Air Base in Thailand during the Vietnam era. The Board concludes that the Veteran's MOS as a fuel specialist, resolving all reasonable doubt in his favor, brought him near the base perimeter based on the location of fuel storage areas and aircraft refueling areas. 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 U-Tapao from September 1972 to February 1975 with a military occupational specialty (MOS) of Pilot. 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 U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, 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 passed away on March 9, 2008 due to rectal and prostate cancer. The Board notes that a July 2012 statement from the Office of the Coroner of the State of Louisiana indicated that the Veteran's cause of death should be updated to include both carcinoma of the rectum and adenocarcinoma of the prostate. The Board notes that prior decisions of the Board have tended to gloss over this correction provided by the coroner's office. Thus, the Board finds that prostate cancer was the cause of death. As noted above, the Veteran contended that he served in the Republic of Vietnam on a temporary duty assignment. In a June 2009 statement, a buddy of the Veteran reported that they recalled the Veteran talking about his time in Vietnam while serving in the Air Force. The Veteran's spouse submitted a statement indicating that the Veteran went on a mission to Vietnam in 1967. The Veteran reported that while stationed in Thailand he had an MOS of fuel specialist. This MOS would have required the Veteran to engage in refueling of aircraft on the ramp, which is close to the base perimeter. A review of the map of the base shows that the storage area is near the perimeter of the base. The Veteran's service records indicate the Veteran insured aircraft were refueled. The Veteran's service records also indicate that he was called on during his off-duty time to reduce heavy workloads on numerous occasions. The Veteran's service records also note that he was frequently selected for special projects due to his forklift driver's license. Although there is no record of assignment to perimeter duty, the Board finds the Veteran and appellant's consistent assertions regarding time spent near the perimeter of the U-Tapao 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. It is also worth noting that the Veteran's performance reports repeatedly express positive reviews of his performance and personal character. 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 U-Tapao 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 his cause of death 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.