Citation Nr: A21020248 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 190827-28536 DATE: December 20, 2021 ORDER Entitlement to service connection for prostate cancer as due to herbicide exposure is granted. Entitlement to service connection for type II diabetes mellitus as due to herbicide exposure is granted. Entitlement to service connection for erectile dysfunction (ED) as secondary to prostate cancer is granted. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is granted. REMANDED Entitlement to service connection for lipoma (claimed as fatty tumor), to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, he was at least as likely as not exposed to herbicides during his service in Thailand, resulting in his current prostate cancer. 2. Resolving reasonable doubt in the Veteran's favor, he was at least as likely as not exposed to herbicides during his service in Thailand, resulting in his current diabetes. 3. Resolving reasonable doubt in the Veteran's favor, his ED is at least as likely as not proximately due to his service-connected prostate cancer. 4. Entitlement to SMC based on loss of use of a creative organ is warranted in light of the Veteran's service-connected ED. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 2. The criteria for service connection for diabetes mellitus as due to herbicide exposure have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3. The criteria for service connection for ED as secondary to prostate cancer have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for SMC based on loss of use of a creative organ have been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to October 1967. In March 2018, the Veteran elected the supplemental claim lane when he opted into the Appeals Modernization Act (AMA) review system by submitting a RAMP election form. In August 2019 the Veteran elected the Hearing with a Veterans Law Judge (VLJ) lane on his Board appeal of the June 2019 AMA rating decision. The Veteran was given a hearing before a VLJ in March 2021. A transcript of the hearing is associated with the electronic claims file. I. Service Connection Generally, to establish service connection a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 44849 (1995). Service connection may also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an "herbicide agent" includes the chemicals 2,4D; 2,4,5T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). This presumption is specifically limited to those diseases listed; prostate cancer and type II diabetes mellitus are included on the list. Id. While the Board is not bound by VA Compensation and Pension Service (C&P) Bulletins or VA's Adjudication Manual (see 38 U.S.C. § 7104(c)), any relevant Bulletins or provisions of the Manual must be acknowledged as part of its duty to provide adequate reasons or bases. See Overton v. Wilkie, 30 Vet. App. 257 (2018). In this regard, the Veterans Benefits Administration (VBA) has found that a Veteran who served in Thailand during the Vietnam War Era may be deemed to have been exposed to herbicide agents if: (1) the Veteran was in the Air Force, (2) the Veteran served at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and (3) the Veteran served as a security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near a base perimeter, as shown by the Veteran's military occupational specialty (MOS), daily work duties, performance evaluations, or other credible evidence. The declassified Vietnam era Department of Defense (DOD) document titled Project CHECO Southeast Asia Report: Base Defense in Thailand 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. Although DOD indicated that the herbicide use was commercial in nature rather than tactical (such as Agent Orange), C&P has determined that there was some evidence that herbicides of a tactical nature, or that of a "greater strength" commercial variant, were used. Given this information, C&P has determined that special consideration should be given to Veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a "facts found or direct basis" should be extended to those Veterans. Significantly, C&P stated, "[t]his allows for presumptive service connection of the diseases associated with herbicide exposure." C&P indicated that herbicide exposure should be acknowledged on a facts found or direct basis if a Veteran served at one of the bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the base perimeter, as shown by military occupation specialty (MOS), performance evaluations, or other credible evidence. 1. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure. 2. Entitlement to service connection for type II diabetes mellitus, to include as due to herbicide exposure. 3. Entitlement to service connection for ED, to include as secondary to prostate cancer. The Veteran has current diagnoses of prostate cancer, type II diabetes, and ED. He has contended that his prostate cancer and diabetes are secondary to herbicide exposure during his active service, and that his ED is secondary to his prostate cancer. Specifically, the Veteran reports that he was directly exposed to herbicides by helping load and unload drums of agent orange on the flight line when stationed in Thailand. Moreover, the Veteran explains that the smell of chemicals hung in the air and he "lived, bathed, washed, cooked, and slept in this base surrounded by heavy foliage while in Thailand." A review of the Veteran's military personnel records shows his military occupational specialty (MOS) was that of a cook. The Veteran does not deny working as a cook; however, he claims that while in Thailand he was assigned to a small base with a small squadron wherein everyone had to pitch in and do jobs other than their assigned MOS. The Veteran also noted that while in Thailand he was able to learn the language well enough to work as a translator on the flight line and in local villages translating for his superiors. As noted above, the Veteran's military personnel records shows that he worked as a cook while stationed at Takhli AB and Nakhon Phanom RTAFB, both in Thailand. A VA memorandum dated February 2015 determined that the information provided by the Veteran was insufficient to send to the US Air Force and Joint Services Records Research Center (JSRRC). Specifically, it was noted that VA sent a subsequent development letter to the Veteran in January 2015 and no records were received regarding his herbicide exposure, that his MOS as a cook would not concede herbicide exposure, that his service treatment records do not show any evidence that the Veteran was exposed to herbicides, and that further research would not likely provide verifiable supporting data. However, the Board notes that in support of his claim, the Veteran provided copies of pages from VA's website indicating that US Air Force Veterans serving in Thailand (at the two bases he served) may have been exposed to herbicides if they were working near the air base perimeter anytime between February 1961 and May 1975. The Veteran has not contended that he worked near the base perimeter, but rather that the perimeter of his base was constantly changing as the base was being expanded at the time requiring foliage clearing to make space for new buildings. The Veteran reported that there was no fence around the perimeter of the base, instead his living quarters were up to the perimeter and you "could easily see from one side of the base to the other. The base being approximately 150 yards wide." The Veteran also noted that he would frequently travel into the local villages and the "roads leading to town were surrounded by heavy vegetation and always had a strong smell of chemicals." Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran was exposed to herbicides during his active service in Thailand. As noted above, both prostate cancer and type II diabetes are on the presumptive list of diseases associated with herbicide exposure. Accordingly, entitlement to service connection for prostate cancer and type II diabetes mellitus is granted. The Veteran has argued that his ED is secondary to his prostate cancer and the required treatment for such. A review of the Veteran's treatment records shows that in conjunction with his prostate cancer treatment he has complained of problems with erectile dysfunction. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's ED is proximately due to his service-connected prostate cancer. Accordingly, entitlement to service connection for ED, as secondary to prostate cancer, is granted. II. SMC for loss of use of a creative organ SMC is warranted if a veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k). Entitlement to SMC based on loss of use of a creative organ can also be granted based on erectile dysfunction. 38 C.F.R. § 3.350. 4. Entitlement to SMC based on loss of use. As the Board herein granted service connection for ED, the Veteran is entitled to SMC for loss of use of a creative organ. 38 U.S.C. § 1114(k). REASONS FOR REMAND 1. Entitlement to service connection for lipoma (claimed as fatty tumor), to include as due to herbicide exposure, is remanded. A review of the Veteran's service treatment records shows that he had a mass removed from his neck in May 1965. More recent VA treatment records show that the Veteran was complaining of pain in his neck following the removal of another lipoma from his neck. Moreover, the Veteran provided a statement in support of this claim noting that the tumor he had on his neck during service grew back, requiring another surgical removal, and it is currently growing back again. The Board notes that despite having all of this information, the RO did not provide the Veteran with a VA examination to determine whether his current lipoma is etiologically related to the lipoma he had removed during his active service. This is a pre-decisional duty to assist error. Accordingly, the claim must be remanded to afford the Veteran a VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his current neck lipoma. The examiner should be given a copy of the Veteran's entire claims file and a note that such was reviewed should be included in his or her report. The examiner should answer the following questions: (a.) It is at least as likely as not (50 percent probability or greater) that the Veteran's current neck lipoma is etiologically related to the neck lipoma he had removed during his active service in May 1965? (b.) It is at least as likely as not (50 percent probability or greater) that the Veteran's current neck lipoma is etiologically related to his conceded in-service herbicide exposure? A detailed rationale for the opinion must be provided. If the reviewing clinician is unable to offer the requested opinion, it is essential that the reviewing clinician offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Ruiz, 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.