Citation Nr: 21075577 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-49 963 DATE: December 20, 2021 ORDER Entitlement to service connection for prostate cancer is granted. FINDING OF FACT The Veteran's prostate cancer is at least as likely as not related to or the result of exposure to an herbicide agent during his service namely, the dioxin in Agent Orange while stationed in Thailand. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for his entitlement to service connection for prostate cancer. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1154; 38 C.F.R. §§ 3.103, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U. S. Air Force from September 1966 to September 1970. This appeal to the Board of Veterans' Appeals (Board) is from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In support of this claim, the Veteran testified at a videoconference hearing in August 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In December 2020, the Board denied this claim. In response, the Veteran appealed to the higher United States Court of Appeals for Veterans Claims (Court/CAVC). In an August 2021 Order granting a Joint Motion for Remand (JMR), the Court vacated the Board's decision denying this claim and remanded it back to the Board for readjudication consistent with specified directives, so this claim is again before this Board. Entitlement to service connection for prostate cancer Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection still may be granted if the evidence, including that pertinent to service, establishes the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Lay assertions may also serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence such as treatment records). The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Certain conditions are considered chronic, per se, including malignant (cancerous) tumors, and therefore will be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year of the Veteran's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, if a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including prostate cancer, shall be presumptively service connected if they manifest to a degree of 10-percent disabling or more at any time after service. 38 C.F.R. § 3.307(a)(6). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumptive provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam or other specified locations during the Vietnam era such as in Thailand. 38 C.F.R. § 3.307(a)(6). First, however, a Veteran must show that he served in the Republic of Vietnam during the Vietnam War era or at some other location where Agent Orange was used or sprayed again, including at specified locations in Thailand and, even then, within certain parameters or responsibilities. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e) to warrant concluding it is presumptively associated with said exposure. Brock v. Brown, 10 Vet. App. 155, 162-63 (1997). Here, as already alluded to, prostate cancer is a presumptive disease according to § 3.309(e), and the Veteran's private medical records from 2014 document his diagnosis of prostate cancer. So, there is no disputing he has this condition or at least did since the filing of this claim or proximate to that, even if now resolved or in remission. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) Thus, resolution of this appeal turns, instead, on whether the Veteran's prostate cancer is attributable to his military service especially to Agent Orange exposure (and not in Vietnam but instead in Thailand). VA has established specific procedures for verifying exposure to herbicides in Thailand during the Vietnam era. VA has determined 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 Vietnam era Department of Defense (DoD) document titled "Project CHECO Southeast Asia Report: Base Defense in Thailand." Special consideration of herbicide exposure on a facts-found or direct basis 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 the diseases associated with herbicide exposure. Most troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases (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 military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. However, this applies only during the Vietnam era from February 28, 1961, to May 7, 1975. Notwithstanding, even if a veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). See also McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). The primary reason for vacating the Board's prior December 2020 decision denying this claim was agreement in the Court-granted JMR that the Board had failed to provide adequate reasons or bases for concluding the Veteran was not exposed to the dioxin in Agent Orange while stationed at a RTAFB in Thailand. Therefore, his prostate cancer could not be a presumptive result. But, after further review of the relevant evidence of record, the Board finds that service connection for the Veteran's prostate cancer is warranted on a presumptive basis because of his service at a RTAFB in Thailand. As will be discussed, the evidence is at least in relative balance (equipoise) concerning whether he was exposed to herbicides while there. The Veteran contends that his prostate cancer is from exposure to Agent Orange while serving at the U-Tapao Royal Thai Navy Airfield in Thailand. His military personnel records and hearing testimony confirm that he served at that air base and, according to his DD Form 214, his MOS was aircraft maintenance specialist. An aircraft maintenance specialist is not a MOS presumed to have been performed at or near an air base perimeter. However, the Veteran indicated in his August 2019 hearing testimony that his barracks was located along the perimeter of the base and that he was required to travel along the base's perimeter to reach the flight line. To corroborate this allegation, he submitted a map of the base showing the location of the barracks and its proximity to the perimeter of the base. Although there is no record of express assignment to perimeter duty, after this further review, the Board finds the Veteran's assertions regarding time spent near the perimeter of the U-Tapao Royal Thai Navy Airfield to be credible. Therefore, as there is no basis on which to question his credibility and no evidence in the record contradicting his claims of routine perimeter contact, the Board finds that it is as likely as not that he was exposed to herbicide agents while stationed at the U-Tapao Royal Thai Navy Airfield in Thailand during the Vietnam era. Moreover, when affording him the benefit of the doubt concerning that, the Board resultantly finds that his prostate cancer is presumed to be a consequence of that exposure. Therefore, entitlement to service connection for his prostate cancer is warranted. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.