Citation Nr: 21065331 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-58 123 DATE: October 25, 2021 ORDER Service connection for prostate cancer is granted. FINDINGS OF FACT 1. The Veteran's duties as a transport pilot during his service caused him to perform duties on or near the base perimeter of various Royal Thai Air Force Bases (RTAFBs) in Thailand during the Vietnam Era. 2. The Veteran was exposed to herbicide agents during his missions to various RTAFBs in Thailand during the Vietnam Era. 3. The Veteran has a current diagnosis of prostate cancer. CONCLUSION OF LAW The criteria for service connection for prostate cancer are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1973 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board denied the Veteran's claims of entitlement to service connection for prostate cancer. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Veteran and VA's Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board's decision as it pertains to that issue and remand the case for readjudication. In August 2019, the Court granted the JMPR and returned the case to the Board for further development and readjudication in compliance with the directives specified. In December 2019 correspondence, the Veteran's representative requested a Board hearing before a Veterans Law Judge. In October 2020 and October 2021, the RO received correspondence from the Veteran's representative seeking to withdraw the Board hearing request. As such, the hearing request is deemed withdrawn. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. 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(d). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Prostate cancer is listed as a disease associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). As an initial matter, the Board notes that diagnoses and treatment for prostate cancer are confirmed by post-service treatment records. The Veteran essentially contends that his duties as a pilot in service brought him in close contact to the perimeter of bases in Thailand where herbicides were used. He further contends that his post-service development of prostate cancer is the direct result of his claimed in-service exposure to herbicides in Thailand. In a December 2013 statement and July 2015 Notice of Disagreement, the Veteran reported that as a transport pilot, he flew regularly and routinely to numerous Pacific/Southeast Asia locations, including multiple regularly scheduled missions of flight transport in Pacific operations, prior to May 1975. He stated that routine stops included U-Tapao, Korat, Ubon, Udorn, and Nakhon Phanom RTAFBs and that aircraft taxiways and runways are near the perimeters of these bases. As noted, the Veteran alleges that he was exposed to herbicide agents during military assignments to Thailand. Current VA policy provides for special consideration of herbicide exposure on a facts-found or direct basis for veterans whose duties placed them on or near the perimeters of certain designated RTAFBs during the Vietnam Era. Specifically, if a veteran served in the United States Air Force during the Vietnam Era at a specified RTAFB, and was involved with base perimeter security, or his duties otherwise placed him near the air base perimeter as shown by evidence of daily work duties, performance evaluations or other credible evidence, then herbicide exposure is conceded. In support of the Veteran's contentions, an October 2015 statement was provided by his commanding officer (Captain) and received by VA in December 2015. His commanding officer reported that he knew the Veteran since his arrival at Norton Air Force Base in March 1975 and that the Veteran was assigned to his flight crew as a copilot. He stated that while stationed at Norton Air Force Base, the assignment was to fly C-141 intercontinental jet transports, predominantly to Southeast Asia, due to the impending fall of Saigon in April 1975. The Veteran's commanding officer stated that due to the high demand for qualified aircrew, the Veteran immediately began regular flight missions to Southeast Asia upon assignment to Norton Air Force Base. The commanding officer also stated that he flew with the Veteran to at least five RTAFBs during that period, including an overnight stay at U-Tapao and transiting missions to Nakhon Phanom, Udorn, Ubon, and Korat. The Veteran's commanding officer confirmed that these bases were party of Norton Air Force Bases regularly assigned Southeast missions and were routinely flown by Norton Air Force Base crews. In a statement received by VA in November 2018, the Veteran's fellow copilot and Instructor Aircraft Commander reported that as part of his assignments he routinely conducted cargo and passenger missions in the Vietnam combat area and that he was the Veteran's reporting official. He also verified that the Veteran was his copilot during war time and that they flew together to severe RTAFBs after being assigned to his flight crew as a copilot. The Veteran's commanding officer also stated that they transited or were laid over at U-Tapao, Nakhon Phanom, Udon, and Korat. Military personnel records during this period do not contradict the Veteran's lay statements or statements provided by his commanding officers. The Board finds that the evidence of record clearly establishes that the Veteran flew missions to designated Thailand air bases (i.e U-Tapao, Korat, Ubon, Udorn, and Nakhon Phanom). The Veteran also served on active duty for a period of the Vietnam era during which VA has acknowledged that herbicides were used near those air base perimeters in Thailand. The Board finds the Veteran's description of his duties and accompanying lay statements by commanding officers to be competent and credible evidence of the nature of the Veteran's service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Although there is a VA formal finding and memorandum, dated in April 2016, in the record suggesting that the Veteran was not exposed to herbicide agents during service in Thailand, the Board resolves all doubt in the Veteran's favor and finds that he was exposed to herbicide agents during his active service at multiple RTAFBs in Thailand. 38 C.F.R. § 3.102. The contradictory evidence did not take into account the Veteran's specific description of his duties and observations of the locations of where he performed his duties, which required working along the perimeter road. Resolving all doubt in the Veteran's favor, and based on the facts found, the Board has determined that the Veteran was exposed to herbicide agents, to include Agent Orange, during active service in Thailand. 38 C.F.R. § 3.102. In addition, the evidence shows that the Veteran is diagnosed with prostate cancer. Finally, the Veteran's prostate cancer is presumed to have been caused by his conceded herbicide exposure. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). As such, the Board concludes that service connection for prostate cancer is warranted. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.