Citation Nr: 21070532 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 20-11 306 DATE: November 24, 2021 ORDER Entitlement to service connection for prostate cancer is granted. REMANDED Entitlement to service connection for kidney cancer is remanded. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during service. 2. The Veteran has a current diagnosis for prostate cancer CONCLUSION OF LAW The criteria for entitlement to service connection prostate cancer are met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (as in effect prior to Feb. 19, 2019); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1955 to February 1958, from April 1958 to April 1966, and from August 1966 to July 1970. This matter is currently before the Board on remand from the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court issued an Order granting a Joint Motion for Partial Remand (JMPR) to vacate and remand that portion of an October 2020 Board decision that denied the issues on appeal and remanded the appeal for action consistent with the JMPR. Entitlement to service connection for prostate cancer is granted. The Veteran claims that he has prostate cancer related to his military service. The Veteran alleges that he developed this disability as a result of exposure to herbicide agents during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.38U.S.C. §§1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1)a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran's VA treatment records reflect a diagnosis of prostate cancer in 2014. See April 25, 2017, Pre-Ambulatory Procedure Note. The current disability element is well established. Shedden, 381 F.3d at 1167. The primary issue in this case is whether the Veteran had an in-service event, injury, or disease, to which his present disabilities are related. Id. The Veteran asserts that he was exposed to herbicide agents while stationed in Thailand. Where a veteran was exposed to an herbicide agent during active military, naval, or air service and specific diseases identified in applicable VA regulations become manifest to a degree of 10 percent or more at any time after service, service connection shall be established for such disability if the requirements of 38 C.F.R. § 3.307 (a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38C.F.R. §3.307 (d) are also satisfied. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). Prostate cancer is one disease enumerated under 38 C.F.R. § 3.309 (e). The VA Adjudication Manual (M21-1) explains that the Compensation Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to Air Force veterans whose duties placed them on or near the perimeters of certain Royal Thai Air Force Bases (RTAFBs), to include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. M21-1, Part IV, Subpart ii. 1.H.4. (November 4, 2021). The M21-1 directs that herbicide exposure may be conceded on a facts-found basis if a veteran served on one of the listed RTAFBs during the Vietnam Era if the veteran served as a security policeman, security dog handler, member of the security police squadron, or otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. Id. The Board is required to discuss these provisions of the M21-1 although they are not binding on the Board. Parseeya-Picchione v. McDonald, 28 Vet. App. 171 (2016); 38 C.F.R. § 20.105. However, in this case the Board finds that reliance on the M21-1 provisions is appropriate as these provisions are based on review by VA's Compensation and Pension Service of a declassified Vietnam era Department of Defense document titled Project CHECO Southwest Asia Report: Base Defense in Thailand, which indicated herbicides were used for weed control on the fenced in perimeters of military bases in Thailand to eliminate vegetation and ground cover for base security purposes. See Rescinded VA Compensation Service Bulletin May 2010; see also Overton v. Wilkie, 30 Vet. App. 257, 264 (2018) ("The Board is required to provide a reasoned explanation for why it finds the M21-1 an accurate guideline for its decision."). Essentially, the M21-1 provisions are based on information from a credible source on the use of herbicides in Thailand which is probative as to determining the conditions of service which could have exposed a veteran to herbicides while serving in Thailand. The Veteran submitted an affidavit indicating that he served in the Air Force and was stationed at Ubon RTAFB from 1967 to 1968. He further stated that he worked as a vehicle dispatcher and as NCO in charge of the driving school, which he said was were located right by the flight line. He also stated that he went to the flight line at least three times, that he took walks all around the base, including the perimeter, at least once per week, and that he left the base through the main gate twice. In addition, the Veteran stated in his affidavit that he worked guard duty a few times, and on several occasions, he guarded sleeping quarters which were located near the perimeter of the base. The Veteran also stated that he assisted a security patrol along the fence and that he could see that vegetation outside of the fence was green and that it looked dried up and dead at the areas where the perimeter was located. Finally, he stated that he recalled seeing men spray around the perimeter at night. Here, the Veteran's service record shows that he served at Ubon RTAFB during the applicable presumptive period. In June 2016, VA issued a Formal finding and determined that there was a lack of information required to verify exposure to herbicide agents. However, the Board finds that the Veteran has submitted credible evidence that he served near the perimeter of Ubon RTAFB and consistent with the circumstances of his service as he has submitted an affidavit stating that he worked guard duty a few times, and on several occasions, he guarded sleeping quarters which were located near the perimeter of the base. Thus, the Board finds that the Veteran was exposed to herbicide agents during his active duty at Ubon RTAFB. Accordingly, as the Veteran has a diagnosis for prostate cancer, and prostate cancer is presumptively associated with exposure to herbicide agents, entitlement to service connection for prostate cancer is granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS FOR REMAND Entitlement to service connection for kidney cancer is remanded. The Veteran claims that he has kidney cancer which is related to his presumed exposure to herbicide agents. The Veteran has a diagnosis for kidney cancer, but kidney cancer is not on the list of diseases that are presumptively service-connected due to herbicide agent exposure. 38 C.F.R. § 3.309(e). In June 2020, the Veteran's representative submitted a letter and an article titled Association between Pesticide Exposure and Risk of Kidney Cancer: A Meta-Analysis which he argues support a link between exposure to herbicide agents and kidney cancer. Additionally, the Veteran's representative cites internet sources indicating that arsenic may be linked to kidney cancer. The Board finds that the Veteran's June 2020 letter cites evidence which indicates that the Veteran's kidney cancer may be associated with the Veteran's presumed exposure to herbicide agents during service, but there is insufficient medical evidence in the claims file to decide the claim. Accordingly, remand is necessary to obtain such a medical opinion, including affording the Veteran an examination if necessary. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matter is REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician as to the nature and etiology of the Veteran's kidney cancer. If a VA examination is deemed necessary for such an opinion, schedule such an examination. The clinician must opine whether basal cell carcinoma, thyroid carcinoma, and lipomata are at least as likely as not related to in-service herbicide agent exposure. The examiner must address the Veteran's contentions that he has experienced headaches since service. (Continued on the next page) The clinician should address the studies and internet sources cited in the Veteran's June 2020 letter in the opinion. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Boal, 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.