Citation Nr: 21071161 Decision Date: 11/30/21 Archive Date: 11/29/21 DOCKET NO. 19-24 834 DATE: November 30, 2021 ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for prostate cancer due to herbicide exposure, and service connection for prostate cancer is granted. FINDING OF FACT 1. Service connection for prostate cancer was denied by the Department of Veterans Affairs (VA) Regional Office (RO) in an August 2020 rating decision; the Veteran initiated but did not perfect his appeal of this decision. 2. Evidence showing that the Veteran may have been exposed to herbicides during his service in Thailand has been received by the RO since the August 2010 rating decision, and relates to a previously unestablished fact necessary to substantiate the claim. 3. The Veteran's prostate cancer is attributable to his service in Thailand, where he was exposed to herbicides. CONCLUSION OF LAW 1. The August 2010 rating decision that denied service connection for prostate cancer, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156 (b), 20.1103. 2. Evidence received since the August 2010 rating decision is new and material; thus, the claim for service connection for prostate cancer is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. Prostate cancer is presumed to be incurred in wartime service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION New and Material Evidence The Veteran served on active duty from August 9, 1966, to August 7, 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by the RO. The RO initially denied the Veteran's claim for service connection for prostate cancer due to herbicide exposure in the April 2010 rating decision, finding no evidence of exposure to herbicides during the Veteran's service in Thailand. Notwithstanding that decision, the RO had a request for possible details of herbicide exposure pending with the Joint Service Records Research Center (JSRRC). The JSRRC was unable to locate any records of herbicide exposure, and the RO issued the August 2010 rating decision. The Veteran initiated an appeal of that decision by filing a December 2010 notice of disagreement, and a statement of the case (SOC) was issued to him in July 2013. However, he did not perfect his appeal by filing a VA Form 9, substantive appeal nor did he submit new and material evidence within one year of notification of the decision. Therefore, that decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156(b), 20.1103. Subsequently, the Veteran filed a new claim in November 2016. He also submitted additional evidence relevant to his claim. Although the RO denied reopening the claim in its December 2016 rating decision, in the June 2019 SOC, the RO clearly reopened the Veteran's claim and readjudicated that claim on the merits. Regardless of how the RO ruled on the question of reopening, however, the Board must decide the matter on appeal, because reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In any event, the evidence received since the December 2016 rating decision includes evidence that is new and material to the claim. See 38 C.F.R. § 3.156. Specifically, the Veteran submitted evidence demonstrating that he had come into contact with the air base perimeter through his work duties in Thailand. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened. 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 service. 38 U.S.C. § 1110; 38 C.F.R. § 3.30 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability;(2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362,1366 (Fed. Cir. 2009). In addition, several statutory presumptions operate in connection with section 1110. Of particular relevance, 38 U.S.C. § 1116 provides that, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including prostate cancer, are presumptively service-connected, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1116(a)(1), (a)(2); 38 C.F.R. § 3.309(e). Pursuant to its duty to assist, VA has established a procedure for Regional Offices to verify exposure to herbicides in Thailand during the Vietnam Era. 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 VIII, Subpart i. 1.A.4.b. 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. When relying on any M21-1 provision, the Board must independently review the matter the M21-1 addresses and if, after such review, the Board chooses to rely on the M21-1 as a factor in its analysis or as the rule of decision, it must provide adequate reasons or bases for doing so. 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 (DoD) 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. Further guidance can also be found in an Internal VA Memorandum titled, "Herbicide Use in Thailand during the Vietnam Era." The Memorandum indicates that there was only limited testing of tactical herbicides conducted in Thailand near the Pranburi Military Reservation in Pranburi, Thailand from April to September 1964. There were no other records of tactical herbicide storage or use in Thailand. Commercial herbicides were frequently used within perimeters of air bases for vegetation control. The memorandum acknowledged that if a veteran's military occupational specialty or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides. However, the memorandum cautioned that there were no records to show that the same tactical herbicides used in Vietnam, were used in Thailand, and to consider that information when evaluating the claim. 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 claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). As a preliminary matter, the Veteran's medical records show that he has prostate cancer. Private medical treatment records from March 2009 show that the Veteran underwent a radical prostatectomy and pelvic lymph node dissections. His diagnosis at the time of admission for the procedure was prostate adenocarcinoma, and the record noted that the Veteran was a 62 year old male with prostate cancer. Thus, a current disability is present. In his initial December 2009 claim for service connection, the Veteran reported that he was exposed to herbicides during his service in Thailand from 1968 to 1969 as a military weapons mechanic. He reported that he worked on the flight line every day of his one year tour of duty. The Veteran believed he was probably exposed to herbicides because the areas between the flight line and the perimeter were cleared of all vegetation. The Veteran's service records show that he was stationed in Thailand at Nakhon Phanom Royal Thai Air Force Base from December 1968 to December 1969. Included in his list of duties was a statement indicating that he was responsible for organizational and field level maintenance, servicing, modification and phase inspections on A1E/G/H/J and A-26A aircraft. A July 2010 response from the Defense Personnel Records Information Retrieval System (DPRIS) found that it was unable to confirm that the Veteran was exposed to Agent Orange while stationed at Nakhon Phanom in Thailand. In the April 2010 rating decision, the RO cited to the "Herbicide use in Thailand during the Vietnam Era," internal VA memorandum, which noted that there was limited testing of tactical herbicides conducted in Thailand from April 1964 to September 1964, and this location was not near any U.S. military installation or Royal Thai Air Force Base. In his November 2016 claim to reopen his previously denied service connection claim, the Veteran indicated that he worked on the flight line at Nakhon Phanom RTAFB, adjacent to the perimeter of the base where it was sprayed with Agent Orange for one year in 1969. The flight line was less than 1/8 of a mile from the perimeter. In a subsequent April 2017 statement, the Veteran explained that Nakhon Phanom RTAFB was a very small base with only one runway, very close to the perimeter of the base. He further described his job as a weapons mechanic was to load and unload bombs, rockets, guns and ammunition into the planes while the engines were running on the flight line. Further the Veteran claimed that that he armed and de-armed the bombs, guns and rockets at the end of the runway which put him closer to the perimeter of the base. In his May 2017 VA Form 21-0958, Notice of Disagreement, the Veteran expressed his disagreement with the May 2017 rating decision which denied reopening his claim for service connection. The Veteran indicated he submitted evidence that he worked near the base perimeter from 1968-1969, well within the timeframe for Agent Orange exposure, which subsequently caused his cancer. The Veteran believed that his evidence was not fully considered as it only took a month to deny his claim. In response to the June 2019 VA Statement of the Case, the Veteran filed a VA Form 9, Appeal to the Board of Veterans' Appeals, in August 2019, but did not request an optional board hearing. The Veteran, again, disagreed with the VA finding no service connection of his prostate cancer to herbicide exposure in Thailand. Upon weighing the evidence in the record, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran was exposed to herbicides during his service in Thailand. Accordingly, he should be entitled to the presumption of service connection under 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e). In this case, the evidence of record establishes that the Veteran served in Thailand from December 1968 to December 1969. In the criteria set forth in the VA's Adjudication Procedures Manual, M21-1, for a veteran who served in the U.S. Air Force in Thailand during the Vietnam Era at one of the specified RTAFBs in a capacity that otherwise placed such a veteran near the air base perimeter as shown by the evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be conceded on a direct or facts-found basis. In this case, the Veteran served in Nakhon Phanom, which was one of the specified RTAFBs. Performance reports from his chain of command evaluated the Veteran in the performance of his duties as the flight line maintenance supervisor for the weapons release sections. Along with his other service records, these performance reports are consistent the Veteran's written testimonials that he had to inspect aircraft and weapons systems on the flight line near the base perimeter. The Veteran submitted detailed photos of the Nakhon Phanom airfield illustrating the close proximity of his flight line operations near the base perimeter. The Veteran's service connection claims were validated in a personal letter from his primary care physician at the VA Joint Ambulatory Care Center in Pensacola, Florida. The Veteran is competent to provide statements regarding the location of his duties in service since they involve the Veteran's recollection of his location at a particular moment in time, which is something the Veteran would be qualified to provide information about. There is nothing in the record to suggest that the Veteran's statements are not credible. His assertion that his responsibilities to armed and de-arm the bombs, guns and rockets at the end of the runway, which put him closer to the perimeter of the base, was not contradicted by any of the records provided. The Veteran's statements should also be afforded more weight because they are supported by contemporaneous records of the time. The statements found in the Veteran's performance evaluation indicated that the Veteran served as the flight line maintenance supervisor for the weapons release sections, which supports the Veteran's assertion that he had contact with the base perimeter. While the July 2010 DPRIS response indicated that it was unable to confirm that the Veteran was exposed to herbicides during his service in Thailand, it did not address that there was some use of non-tactical herbicides within the fenced perimeters, which was also mentioned in the internal VA memorandum. More importantly, VA's Adjudication Procedures Manual specifically sets forth that herbicide exposure as defined at 38 C.F.R. § 3.307(a)(6)(i) is conceded when (1) a Veteran served at Nakhon Phanom during the Vietnam Era and (2) was "near" the air base perimeter as shown by evidence of daily work activities, performance evaluation reports or other credible evidence. M21-1, IV.ii.1.H.5.b. There is no dispute that the Veteran served at Nakhon Phanom during the Vietnam Era, and the Board finds that the Veteran's duties regularly placed him on the air base perimeter. Thus, the prior information from the July 2010 DPRIS response has been superseded and is entitled to little weight in this case. In sum, the Board finds that the preponderance of the evidence supports a finding that the Veteran was exposed to herbicides during his service in Thailand. Thus, entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is warranted. Cory Picton Veterans Law Judge Board of Veterans' Appeals 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.