Citation Nr: 21005302 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-25 960 DATE: February 1, 2021 ORDER Entitlement to service connection for prostate cancer is granted. FINDING OF FACT It is at least as likely as not that the Veteran’s active-duty service included visitation within the territorial area of the Republic of Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1990. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of March 2017 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran’s timely notice of disagreement (NOD) followed in March 2017 and the RO issued a statement of the case (SOC) in April 2017. The Veteran’s timely appeal to the Board followed in May 2017. Following the issuance of a supplemental statement of the case (SSOC) in June 2017, the undersigned Veterans Law Judge (VLJ) conducted a hearing in July 2020. A transcript of the hearing is of record. 1. Entitlement to service connection for prostate cancer. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, certain conditions, including prostate cancer, may be service-connected on a presumptive basis when a veteran has been exposed to certain herbicide agents. See 38 C.F.R. § 3.307(a) (providing basis for presumption); see also 38 C.F.R. § 3.309(e) (listing qualifying conditions). These regulations further provide a second presumption: that veterans who served within certain geographic regions or who carried out particular duties were in fact exposed to such herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii) (providing that exposure is presumed where a veteran served “in the Republic of Vietnam… [between] January 9, 1962 [and] May 7, 1975… [including] service in the waters offshore and service in other locations if [they] involved duty or visitation in the Republic of Vietnam”) (emphasis added); see also id. at (a)(6)(v) (providing that exposure is presumed for veterans who “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent”). The Veteran has asserted that his prostate cancer is due to herbicide agent exposure and that he was exposed to such herbicide agents during his active-duty service as a munitions mechanic at the U-Tapao airfield in Thailand. See July 2020 Transcript at 4-6 (asserting that duties required regular travel to and from the perimeter of the airfield, where areas had been defoliated with herbicide agents); see also September 2016 VA Form 21-4138; see also April 2017 Correspondence at 3. The Veteran’s military personnel records, as well as lay statements from other veterans, corroborate that he served in this capacity. See August 2016 Military Personnel Records at 36 (providing performance review for service in Thailand from June to December 1969); see also April 2017 Statement at 2 (statement from fellow veteran corroborating nature of duties); see also April 2017 Statement at 10-15 (providing photographs of defoliated areas at airfield perimeter); see also April 2017 Medical Treatment Records at 25 (providing map of airfield and illustrating locations of daily duties). The applicable regulations do not provide for a presumption of exposure to herbicide agents for such service. See 38 C.F.R. § 3.307(a)(6)(iii)-(v). Additionally, these regulations define “herbicide agents” specifically as “2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.” See id. at (a)(6)(i). Whether the Veteran was exposed in Thailand to the specific herbicide agents defined in the regulations is therefore a question of fact before the Board. However, resolution of this question is not necessary for the adjudication of the Veteran’s claim, because he has also asserted that he briefly visited the Republic of Vietnam during transfers to and from his active-duty service in Thailand. See July 2020 Transcript at 3-4 (asserting that he deplaned in Vietnam during a medical transfer); see also April 2017 Correspondence at 1 (asserting that he deplaned in Vietnam during changes of duty station); see also April 2017 Medical Treatment Records at 1 (corroborating time and nature of injury necessitating medical transfer). The Veteran’s military personnel records do not explicitly corroborate that he visited the Republic of Vietnam during these transfers. See April 1990 Military Personnel Records at 2 (listing duty stations between March 1968 and May 1971). However, the Board does not find this absence dispositive given the brief nature of the transfers involved. The Veteran has also submitted a corroborating statement from another veteran who served in Thailand, who likewise asserts that their transfers involved deplaning within Vietnam. See April 2017 Medical Treatment Records at 21. Finally, the Veteran has submitted a contemporaneous letter he wrote before his transfer to Thailand indicating that his travel route would include Vietnam. See July 2017 Correspondence. The Board therefore concludes that it is at least as likely as not that the Veteran’s active-duty service included visitation within the Republic of Vietnam, and accordingly presumes that he was exposed to herbicide agents. 38 U.S.C. § 5107; 38 C.F.R. § 3.307(a)(6)(iii). The Board has found no evidence in the record sufficient to rebut this presumption. 38 C.F.R. § 3.307(d). The assignment of service connection for prostate cancer is therefore warranted. 38 C.F.R. § 3.307(a). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.