Citation Nr: 21068879 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 17-46 156 DATE: November 15, 2021 ORDER Service connection for prostate cancer, to include as due to herbicide exposure, is granted. Service connection for coronary artery disease (CAD), to include as due to herbicide exposure, is granted. Service connection for diabetes mellitus type II (diabetes), to include as due to herbicide exposure, is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, claimed as secondary to diabetes, is remanded. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents while stationed at U-Tapao Royal Thai Air Force Base (RTAFB), Thailand. 2. The Veteran's prostate cancer is presumed to be related to his exposure to herbicide agents. 3. The Veteran's CAD is presumed to be related to his exposure to herbicide agents. 4. The Veteran's diabetes is presumed to be related to his exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 2. The criteria for entitlement to service connection for CAD, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). 3. The criteria for entitlement to service connection for diabetes, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from September 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2014 and March 2016 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested Board hearings in his September 2017 and January 2019 VA Form 9s. However, in March 2021, the Veteran withdrew his requests for hearings. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be established on a presumptive basis; certain diseases associated with exposure to herbicide agents used in support of military operations in Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the claimed disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Diseases found associated with herbicide agent exposure for purposes of the presumption are specified in the statute and regulation and include prostate cancer, diabetes, and CAD. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Prostate cancer, diabetes, and CAD may be presumptively service-connected if they manifest at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). 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 Department of Defense document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Therefore, VA has established specific procedures for verifying exposure to herbicides for veterans who served in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1MR, ("M21-1MR") Part IV, Subpart ii, Chapter 2, Section C. Special consideration of herbicide agent exposure on a facts-found or direct basis are extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases, which 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 RTAFBs 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 his or her MOS, performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. This allows for presumptive service connection of the diseases associated with herbicide exposure and 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. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical disability, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to service connection for prostate cancer, CAD, and diabetes, to include as due to herbicide exposure. The Veteran contends that he has prostate cancer, CAD, and diabetes that are etiologically related to herbicide exposure incurred during his service at U-Tapao RTAFB, Thailand. The Veteran's service personnel records confirm that he was stationed at U-Tapao RTAFB from December 1967 to December 1968. Affording the Veteran the benefit of the doubt, the Board finds that he served near and frequently crossed the perimeter of U-Tapao RTAFB and that he was likely exposed to herbicide agents during service. The Veteran's service personnel records indicate that his military occupational specialty was weapons mechanic, and he served as a munitions loading team member in Thailand. In a May 2013 letter, received by VA in June 2013, the Veteran stated that he served as a Munitions Maintenance Supervisor and, while in Thailand, was the team chief in charge of a three member team who loaded explosives for B-52 operations in the pre-load section of a squadron located a U-Tapao RTAFB. He stated that pre-load operations took place on the north side of the flight line, on the far northeast edge of the base. He stated that the bomb storage area was 50-60 yards from the standing green jungle, and all green growth stopped at the jungle's edge. From the edge of the jungle, moving across the entire bomb storage area (300 feet), the pre-load racks (1000 feet), and the entire open field area on the north side of the runway, nothing green or walking or crawling was ever observed to be alive. The entire area was considered a dead zone and one of the first things noted by all new troops was that there was only one dead zone on the whole base. In an August 2013 statement, M.J.K., who served on the Veteran's preload team in Thailand, stated that U-Tapao RTAFB consisted of a dense jungle area which had to be cleared for the expansion of all the aircraft that were using the base when they were stationed there. Preload was located in the northeast section of the base, close to the outer perimeter and only separated from the jungle by the military police road, which they used to get to the bomb storage area. He estimated that the outer perimeter was less than 75 yards from the preload area. To get to this side of the base, they had to travel by bus along the base perimeter, past the chow hall, through a military police checkpoint, and past the bomb dump. He stated that the preload area was north of the dead zone, and everyone involved in this operation walked through and worked on a daily basis in this defoliated area of the base. In a July 2015 statement, the Veteran indicated that he regularly traveled along perimeter roads within U-Tapao RTAFB and worked within areas that were defoliated with herbicides. He also submitted pictures showing defoliated areas near the pre-load work area, bomb storage area, and nearby perimeter road, as well as near base housing. In a statement received by VA in July 2015, D.E.B., who served on the Veteran's preload team in Thailand, stated that U-Tapao RTAFB was a work in progress while they were stationed there, and that herbicides were sprayed on the dense jungle and elephant grass to keep the base clear. To get to the preload area, they would board the squadron bus and travel the perimeter road up to the M.P. guard posts, before traveling past the bomb storage area. All of their work happened in the area they all considered the "Dead Zone." Anything north of the runway was considered the "Dead Zone," since nothing in this area was alive other than the airmen working on this portion of the base. They also worked in the bay storage area, which butted up to the jungle and the base perimeter, only separated by a razor topped cyclone fence, which the military police and K-9 units routine walked along with the preload team. In October 2018, the Veteran submitted numerous pictures of U-Tapao RTAFB, including some of himself working at the base, and a map of the base. The pictures were labeled and indicated that the Veteran routinely worked in munitions areas located near the base perimeter. The Board notes that none of these pictures show any significant vegetation within the base. In April 2021, the Veteran's representative submitted a declassified report from a unit stationed U-Tapao RTAFB in the fourth quarter of 1971. The report indicated that "vegetation control adjacent to the [perimeter] fencing was a continual problem, one which the squadron seemed to be fighting a losing battle against. Periodic grading of the areas on both sides of the fencing seemed to stunt the vegetation's growth only temporarily. However, during the quarter the squadron began spraying chemical herbicides on the troublesome plants." When read together, the Board finds that the Veteran's statements, the statements from M.J.K. and D.E.B., the photographs of the base, the maps of the base, and the unclassified report tend to show that the Veteran frequently traveled along and worked near the base perimeter. This is highly probative evidence that he served near the perimeter of U-Tapao RTAFB. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran likely frequented the perimeter of U-Tapao RTAFB. Therefore, the Board concludes that he performed his duties near the perimeter of the of U-Tapao RTAFB and was likely exposed to herbicide agents while stationed in Thailand. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Moreover, the medical evidence of record establishes current diagnoses of prostate cancer, diabetes, and CAD. See May 2015 private treatment record (reflecting diagnoses of prostate cancer, diabetes, and CAD). As prostate cancer, diabetes, and CAD are diseases subject to presumptive service connection upon finding a Veteran was exposed to an herbicide agent during service, service connection is granted for each of these disabilities. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, claimed secondary to diabetes, is remanded. A June 2016 private treatment record indicated that the Veteran had recently been diagnosed with neuropathy in his feet by his primary care physician, Dr. D. The Veteran contends that this neuropathy in his feet is related to his now service-connected diabetes. To date, VA has not obtained a medical examination and opinion addressing this claim. Accordingly, a VA examination is necessary prior to further adjudication. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the Veteran's medical treatment records from his primary care physician, Dr. D., have not been obtained and added to his claims folder. On remand, the RO should request that the Veteran identify and provide medical record releases for his relevant private medical treatment providers, including his primary care physician. 2. Entitlement to service connection for COPD, claimed as due to herbicide exposure, is remanded. An April 2015 private treatment record indicated that the Veteran had been diagnosed with COPD. The Veteran contends that his COPD is related to or caused by his exposure to herbicides. To date, VA has not obtained a medical examination and opinion addressing this claim. Accordingly, a VA examination is necessary prior to further adjudication. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following actions: 1. Provide the Veteran with a VA Form 21-4142, Authorization and Consent to Release Information to VA, for EACH of his identified medical providers, to include his primary care physician, Dr. D., and ask that the form(s) be completed and returned. Associate all records obtained with the claims file. If any identified records are unavailable or cannot be obtained, inform the Veteran and give him an opportunity to submit such information. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current peripheral neuropathy of the bilateral lower extremities. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. After examination of the Veteran and review of the claims file, the examiner shall provide an opinion as to whether any currently diagnosed peripheral neuropathy of the bilateral lower extremities is at least as likely as not (50 percent probability or greater) caused or aggravated by the Veteran's service-connected diabetes. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. The examiner must provide separate findings and rationales relating to causation and aggravation. A thorough explanation must be provided for the opinions rendered. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his current COPD. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. After examination of the Veteran and review of the claims file, the examiner shall provide an opinion as to whether the currently diagnosed COPD is at least as likely as not (50 percent probability or greater) related to or caused by the Veteran's service, to specifically include exposure to herbicide agents during service. In providing this opinion, the VA examiner should specifically address the following evidence: a. The April 2015 private treatment record attributing the Veteran's diagnosis of COPD to chronic smoking and noting that he smoked 2-3 packs per day from 1969 to 1989. b. The July 2008 private treatment record noting that the Veteran has a 15 pack year smoking history, but quit in 1989. (Continued on the next page) A thorough explanation must be provided for the opinions rendered. 3. Then, readjudicate the remaining issues on appeal. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.