Citation Nr: A21017588 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 211012-190434 DATE: November 1, 2021 REMANDED Entitlement to service connection for residuals of prostate cancer as due to exposure to herbicide agents is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from August 1963 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2021 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran timely appealed to the Board, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ). 38 C.F.R. §§ 20.201, 20.202(b)(1). Service connection for prostate cancer was previously denied in October 2014. In the March 2021 decision on appeal, the AOJ made an at least implicit favorable finding that new and relevant evidence had been received to warrant readjudication of the Veteran's claim on the merits. The Board is bound by that favorable finding. 38 C.F.R. § 3.104(c). Entitlement to service connection for residuals of prostate cancer as due to exposure to herbicide agents is remanded. The Veteran seeks to establish service connection for prostate cancer as due to exposure to herbicide agents while serving in Thailand. Specifically, in a January 2014 submission the Veteran stated that while he was stationed at Minot Air Force Base (AFB) in Minot, North Dakota, he participated in a number of temporary duty assignments, and that on two occasions he served at U-Tapao Royal Thai Air Force Base (RTAFB), where herbicides were used. In an August 2014 submission, he stated that in 1965 and 1966 he was on temporary duty in Okinawa, Japan, that his task was to refuel planes out of Guam, and that during the last quarter of 1965 his airplane was moved forward to U-Tapao RTAFB. In an October 2020 submission, he stated that while stationed in Thailand from August 12, 1966 to September 12, 1966, he maintained the KC-135, an air refueling plane, and that he would take off from either U-Tapao or Takhli RTAFBs as his job was to refuel supporting aircraft over Vietnam and then return to one of those air bases. He further stated that his duties often placed him on the parking ramp or flight lines that were shown to be near the base perimeters of U-Tapao and Takhli RTAFBs, and that his living quarters were also near the base perimeter. In support of his claim, the Veteran submitted maps of both U-Tapao and Takhli RTAFBs. Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure, to include prostate cancer. 38 C.F.R. § 3.309(e). All Veterans who served in the Republic of Vietnam during the applicable time frame are presumed to have been exposed to an herbicide agent. However, the Veteran does not contend that he served in Vietnam. Rather, as noted, he contends that his service at Takhli and U-Tapao RTAFBs exposed him to herbicide agents. In a May 2010 bulletin, VA 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. A primary source of this information was the declassified Vietnam-era Department of Defense (DOD) document entitled, "Project CHECO Southeast Asia Report: Base Defense in Thailand." Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), VA determined that there was some evidence that herbicides of a tactical nature, or that of a greater strength commercial variant, were used. In light of this information, VA has determined that special consideration 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 diseases associated with herbicide exposure. The May 2010 bulletin identifies several bases in Thailand, including Takhli and U-Tapao RTAFBs. VA has indicated that herbicide exposure should be acknowledged on a facts found or direct basis if (1) a United States Air Force veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence; (2) an Army veteran was a member of a military police unit that served at or near a base perimeter in Thailand; or (3) an Army veteran served on an air base in Thailand and provided perimeter security. In its March 2021 rating decision, the RO made favorable findings that the Veteran had been diagnosed with a history of malignant neoplasm of the prostate (prostate cancer), that the disability was a chronic disease subject to presumptive service connection as due to exposure to herbicide agents, and that an August 1966 service treatment record (STR) shows that the Veteran complained of prostate problems at that time. These favorable findings are binding on the Board, and they are therefore not in dispute. For informational purposes, the Board notes that the finding regarding in-service complaints of prostate problems reasonably raises the theory that the Veteran's prostate cancer was directly incurred in or caused by service, a theory that was addressed by the RO in both its previous, October 2014 rating decision, as well as in the March 2021 rating decision on appeal. In a December 2020 submission, however, the Veteran appears to have expressly abandoned the theory of direct service connection, as he requested that his claim be processed only as a claim for presumptive service connection based on his service in Thailand. Upon review of the evidence, the Board finds that many of the Veteran's contentions regarding the nature of his service are consistent with military personnel records, but that none of the available evidence confirms that he served in Thailand, or in any other location which contemplates service connection on a presumptive basis as due to exposure to herbicide agents. The Veteran's DD Form 214, for example, shows that his military occupational specialty (MOS) was aircraft mechanic. Military personal records also confirm that he served at Minot AFB, and an August 1965 performance report which lists Minot AFB as his station shows that he was assistant crew chief and that he was responsible to the crew chief for assisting in all organizational functions including pre-flight, launch, recovery, refuel, defuel, and towing. The report also notes that he was selected by the branch chief for a 60-day temporary duty assignment to support another wing in Southeast Asia, but it does not, unfortunately, contain information regarding a specific location in Southeast Asia. A December 1965 military personnel record shows the Veteran's title as assistant KC-135 crew chief. Military personnel records also confirm that he had at least four temporary duty assignments in late 1966 and early 1967, all of which constituted foreign service, but again, that record does not contain further information regarding a specific location. An August 1966 travel voucher shows that he traveled from Minot AFB through other U.S. air bases to Anderson AFB on Guam, and from there back to Minot AFB, demonstrating that he did not travel to or serve in Southeast Asia at least on that occasion. Another August 1966 military personnel record shows that he was on a course that required the aircraft to be flown into an active combat zone but does not indicate which combat zone that was. Simply put, while these records confirm much of what the Veteran has alleged regarding temporary duty orders and even possible service in Southeast Asia, nothing in the available evidence confirms that the Veteran served in Thailand or in any other location where herbicide agents are known to have been used. In November 2020, the RO sent the Veteran a letter asking him to describe the circumstances of his exposure to herbicide agents during his service. In March 2021, VA conducted research into the specific question of whether the Veteran was exposed to herbicide agents while on a temporary duty assignment at U-Tapao and Takhli RTAFBs from August 12, 1966 to September 12, 1966. It found that the Air Force Historical Research Agency (AFHRA) was unable to confirm the event claimed by the Veteran, and that no evidence was located to support documentation of the claimed event. The Board finds that, given the available evidence and the Veteran's contentions, the RO's search was not broad enough to answer the primary question in this case, which is whether the Veteran, at any time during his active service, served at Takhli or U-Tapao RTAFB while on temporary duty orders. The Veteran has alleged that he was stationed in Thailand on at least two occasions. Military personnel records confirm that he was on temporary duty orders and that they constituted foreign service on at least four occasions. The August 1965 performance report also shows that he had temporary duty orders to a location in Southeast Asia. Even with all of this information, the RO researched only whether the Veteran was exposed to herbicide agents while serving in Thailand during a specific month beginning in August 1966. The Board finds that the RO's failure to undertake additional development in order to answer the question of whether the Veteran served on temporary duty orders at Takhli or U-Tapao RTAFBs constitutes a pre-decisional duty to assist error. Under the circumstances, a remand for additional development is warranted. This matter is REMANDED for the following action: Contact all appropriate sources for the purpose of determining whether the Veteran, at any time during his active service, served at either Takhli or U-Tapao RTAFBs while on temporary duty orders, as alleged. Efforts to obtain the evidence and/or information should be fully documented and should be discontinued only if it is concluded that the evidence and information sought does not exist or that further efforts to obtain it would be futile. 38 C.F.R. § 3.159 (c)(2). The evidence and information procured, if any, should be associated with the record. If any of the evidence or information sought is not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified and provided an opportunity to submit the evidence themselves. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.