Citation Nr: 21075878 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-53 230A DATE: December 21, 2021 ORDER Entitlement to service connection for prostate cancer is granted. FINDING OF FACT The evidence shows diagnosis and treatment for prostate cancer and offers credible evidence to support the Veteran's contention that he was exposed to herbicide agents during his period of service at Nakhon Phanom Royal Thai Air Force Base (RTAFB). CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from December 1965 to December 1969, with service at the Nakhon Phanom Air Base between February 1969 and December 1969. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran had a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. The Board will now fully and finally adjudicate the matter at hand based on the evidence of record. 1. Entitlement to service connection for prostate cancer The Veteran contends he is due entitlement to service connection for his prostate cancer. Specifically, the Veteran argues that his prostate cancer is due to exposure to herbicide agents while working near the perimeter as part of his duties while stationed at the Nakhon Phanom Royal Thai Air Base in Thailand. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. VA laws and regulations provide that if a veteran was exposed to an herbicide agent during service, certain listed diseases, including prostate cancer, are presumed to be related to that herbicide exposure, and absent affirmative evidence to the contrary, service connection is granted on a presumptive basis. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Although the presumption of in-service herbicide exposure does not extend to veterans who served in Thailand during the Vietnam era, VA now recognizes that tactical or tactical-like herbicides were used on the fenced-in perimeters of military bases in Thailand. To that end, due consideration is given as to whether exposure to herbicide agents can be conceded on a facts-found basis for certain veterans whose duties placed them on or near the perimeters of Thailand Air Bases during the Vietnam era, to include, as relevant in this case, Nakhon Phanom Royal Thai Air Force Base. 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, performance evaluations, or other credible evidence, then herbicide exposure may be acknowledged on a facts-found or direct basis. For the following reasons, the Board grants the Veteran service connection for his prostate cancer. Private treatment records from Bothwell Regional Health and Kansas University Medical Center indicate the Veteran has a current diagnosis of prostate cancer. The Veteran's service treatment records and military personnel records indicate that he was stationed at Nakhon Phanom Royal Thai Air Force Base in Thailand for 10 months, from February 1969 to December 1969. The Veteran submitted a lay statement with his claim for service connection of prostate cancer in April 2015, in which stated that he worked close to the flight line during his service in Thailand and reported that he worked next to the perimeter of the base at the "bomb dump" (munitions storage area). In May 2015, the Veteran's personnel records were associated with the file. The records showed the Veteran served in Thailand with a military occupational specialty (MOS) of munitions specialist and munitions inspector. The Veteran filed another June 2015 lay statement, where he again reported that he worked near the perimeter of the Nakhon Phanom RTAFB, specifically working at the munitions storage area. He claimed that herbicides were sprayed around the perimeter of the base, as well as around the munitions storage area. The Veteran has asserted in multiple statements that the bomb dump, his primary duty station, was located at the end of the runway, next to the perimeter of the base where security patrol dog handlers worked. In October 2021, the Veteran received a Board hearing with the undersigned Veterans Law Judge (VLJ). The Veteran testified that he worked in the bomb dump (munitions storage area) that was located near the perimeter of the base due to its hazardous nature. On the hearing, the Veteran clearly described his duties while at Nakhon Phanom RTAFB as well as his proximity to the perimeter of the base while stationed there. Along with his hearing testimony, the Veteran submitted pictures and maps from the Nakhon Phanom RTAFB showing the flight line, the K-9 units, and the base. The Veteran also submitted a map of the base, indicating where he worked in relation to the perimeter of the base. The Veteran's private and VA treatment records show diagnosis and treatment of prostate cancer, and the Veteran's credible lay statements, testimony at the Board hearing, military personnel records, pictures, and maps of Nakhon Phanom RTAFB establish he was exposed to herbicide agents while in Thailand. In so finding, the Board finds that the Veteran's descriptions are credible and consistent with the circumstances of his service and the evidence in his personnel record. The maps and pictures that the Veteran submitted also corroborate his descriptions of his time in Thailand. Although the personnel records do not specifically note that the Veteran's duties required him to go to the perimeter of the base, the personnel records and lay statements show that he was stationed at Nakhon Phanom during the Vietnam era. Additionally, the pictures show where the Veteran worked on the base and the map corroborates the Veteran's statements that the bomb dump was located on the perimeter of the base. The Veteran's MOS was munitions specialist and included multiple activities around the base, which included work around the perimeter of the base. The Veteran has credibly testified to such, and the Board sees no reason to doubt his account of his MOS duties and where they required him to be located while at Nakhon Phanom. There is no affirmative evidence to contradict the Veteran's reports of being at the perimeter of the base, and his assertions are consistent with the places, types, and circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The overall evidence demonstrates that it was likely that the Veteran served "near the perimeter" while at Nakhon Phanom RTAFB in performing his duties as a munitions specialist. While the Veteran does not have the requisite service in Vietnam or Korea to warrant entitlement to the presumption of in-service herbicide exposure, he does have the requisite service in Thailand to warrant consideration of in-service herbicide exposure on a facts-found basis. The totality of the evidence in this case, the most pertinent of which is summarized above, is at the least in relative equipoise as to whether the Veteran was exposed to an herbicide agent in Thailand. The reasonable doubt created by the relative equipoise in the evidence must be resolved in favor of the Veteran; therefore, exposure to an herbicide agent during service near the Nakhon Phanom air base perimeter is conceded based on the facts found. As the Veteran has been found to have been exposed to in-service herbicides, and his diagnosed prostate cancer is one of the listed diseases that is presumed to be due to such in-service herbicide exposure, entitlement to service connection for prostate cancer is therefore warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.