Citation Nr: 21008024 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-27 942 DATE: February 11, 2021 ORDER Service connection for a prostate disorder is denied. Service connection for a left leg disorder is denied. FINDINGS OF FACT 1. The Veteran had active service between October 1959 and October 1979, to include service in Thailand between May 1970 and May 1971 at the Nakhon Phanom Royal Thai Air Force Base (RTAFB) with a military occupational specialty (MOS) of aerospace ground equipment technician. 2. A prostate disorder, to include prostate hyperplasia (prostatic intraepithelial neoplasia (PIN)), and a left leg disorder, to include peripheral artery disease (PAD) and a femoral artery occlusion, were not shown in service and are not causally related to service, to include as due to in-service exposure to herbicide agents, and were not caused or permanently worsened by a service-connected disability. CONCLUSIONS OF LAW 1. A prostate disorder was not incurred in service, is not due to exposure to herbicide agents, nor is it proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). 2. A left leg disorder was not incurred in service, is not due to exposure to herbicide agents, nor is it proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, in July 2020, the Board remanded the claims on appeal for additional development in accordance with a February 2020 Joint Motion for Partial Remand granted by the Veterans Claims Court Clerk. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 for veterans who served in Thailand during the Vietnam War era where: (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 MOS, daily work duties, performance evaluations, or other credible evidence. Notwithstanding the foregoing provisions regarding presumptive service connection for exposure to herbicide agents, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As an initial matter, PIN, PAD/femoral artery occlusion are not considered chronic disorders under 38 C.F.R. § 3.309(a); as such, presumptive service connection based on continuity of symptomatology is not for application. However, the Veteran has argued that PIN and left leg disorder were caused or aggravated by a service-connected disability; therefore, secondary service connection will be addressed. He has also asserted that the disorders were caused or aggravated by in-service herbicide exposure. Accordingly, presumptive service connection on the basis of herbicide exposure will be considered. Finally, direct service connection will be discussed. Turning first to direct service connection, the Veteran has been diagnosed with prostate and left leg disorders. Specifically, November 2020 VA examinations diagnosed PIN, PAD with an amputation below the left knee, and a left femoral artery occlusion. Therefore, current diagnoses have been shown and the first element of service connection has been met as to both claims. As to an in-service incurrence, a review of the service treatment records (STRs) reveals that the Veteran’s genitourinary system was found to be clinically normal in the January 1979 separation examination and that, while he described a cyst behind that was removed during service in an associated Report of Medical History, he did not claim that he then-presently or previously had a tumor, growth, or cancer. As to the left leg, the Veteran reported tenderness in his left fibula in a May 1975 treatment note; however, the STR found no significant abnormality on examination and his lower extremities were found to be clinically normal in his January 1979 separation examination. In sum, the STRs contain no complaints, treatment, or diagnoses of either a prostate disorder or a left leg disorder, or any symptoms reasonably attributed to those disorders. As such, the second element of service connection – an in-service incurrence – has not been met, and the medical evidence does not support service connection on a direct basis for either claim. As to service connection based on presumptive in-service exposure to herbicides, the Veteran has asserted that he was exposed to herbicide agents while serving in Thailand. A review of the record reveals that he served at the Nakhon Phanom Royal Air Force Base in Thailand from May 1970 to May 1971 and that his MOS was an aerospace ground equipment technician. Accordingly, service in Thailand during the Vietnam War era is established. The Veteran reported in March 2013, March 2015, August 2016, and April 2020 lay statements that, while in Thailand, he served as an aerospace ground repairman and technician in the repair and dispatch servicing stations and as the Non-Commissioned Officer In Charge (NCOIC) of the Aerospace Ground Equipment Branch Generator Section. He explained that he worked on the flight line, around aircraft, and was responsible for repairing and positioning ground equipment such as generators, air compressors, air conditioning, hydraulic equipment, and light carts. He detailed that he was responsible for ensuring that all generators and light carts were moved to the location where they were needed, setting them in the proper position, and retrieving and replacing equipment as needed. Specifically, the Veteran described how he was required to position NF-2 light carts in the klong so that personnel manning the base guard towers could see the entire perimeter, start them up every evening before sundown, and retrieve them the following morning. He said that, where equipment broke down, he had to take replacements out or swap out the malfunctioning equipment for operational units. He reported that, as the NCOIC, he frequently went out to the area where the light carts were set up to inspect the equipment and that, when his Section was shorthanded, he personally positioned or retrieved the light carts. In addition, the Veteran noted that he had to drive along the flight line to the perimeter road twice a day in order to set up the light carts, and that the process took over an hour to complete. He is competent to describe observations, to include his maintaining light carts at Nakhon Phanom and working at the sites at which they were installed, because this requires only personal knowledge as it comes to him through his senses. As noted above, the Veteran’s personnel record reflects service at Nakhon Phanom Royal Air Force Base during the Vietnam War era. Furthermore, the Board has considered his lay statements asserting exposure to herbicide agents during active service; however, the evidence, including his statements, do not reflect that he was routinely on the base perimeter as anticipated by service as a security policeman, security patrol dog handler, or member of a security police squadron. Instead, the Veteran’s account of his in-service responsibilities was reinforced by his February 1971 performance review, which detailed that he was responsible for positioning and maintaining generators and lite carts, to include making all necessary major and minor repairs to the units. The performance review observed that he decreased the amount of time in which the units were not operationally ready or in supply. In his lay statements, he described positioning or retrieving lite carts when shorthanded. Accordingly, while the performance review describes his in-service duties, it establishes no more than occasional exposure to the perimeter. The Veteran further submitted excerpts from a 1973 report for Project Contemporary Historical Examination of Current Operations (CHECO) concerning base defense in Thailand. The report notes that natural features such as klongs were present at multiple bases and required both the use of extra lighting and the clearing of vegetation. The report further details how herbicides were heavily used at Nakhon Phanom RTAFB, how lighting around the base’s straight perimeter was excellent, and how NF-2 Light-All units were placed at drainage ditches that went through the fences. The CHECO report affirms the Veteran’s account as to the operational location of the lite carts but does not reflect the level of his exposure to the perimeter of the base. The Veteran additionally submitted April 2019 buddy statements and photographs that he claims details the location where the lite carts were set up. However, the Veteran served in Thailand between 1970 and 1971, and the servicemember stated that he could “only give firsthand evidence about what happened in Okinawa between 1967 and 1968.” Moreover, the fact that the Veteran took a picture or that light fixtures were placed close to the perimeter does not suffice to prove exposure to herbicide agents such as would be presumed from the duties required if he were a security patrolman or policeman or otherwise had to walk the perimeter as part of his job. As such, the April 2019 buddy statement and lay photographs weigh against the Veteran’s assertions and accordingly are not sufficiently credible to establish service near the base perimeter. Ultimately, the evidence of record establishes occasional duties near the perimeter of Nakhon Phanom RTAFB. However, veterans who have periodic or occasional service on or contact with the base perimeter, but whose duty stations were not located there are not entitled to special consideration. Accordingly, his occasional duties on or around the perimeter do not establish herbicide exposure consistent with daily work duties such as those that would be performed by a security policeman, security control dog handler, or member of the security police squadron on a fact-found basis, and the medical evidence does not support presumptive service connection based on herbicide-exposure for either PIN or a left leg PAD. To the extent that the Veteran alleges a nexus between his disorders and his in-service herbicide exposure, a November 2020 VA examiner opined that it was at least as likely as not that the Veteran’s prostate disorder was incurred in or caused by in-service herbicide exposure. The examiner explained that the Veteran’s PIN was a pre-cancer of the prostate and that the presumptive provisions applicable to prostate cancer would apply to PIN. However, the examiner did not find that the Veteran had more than occasional contact with the base perimeter during his service in Thailand and thus did not establish sufficient herbicide exposure to meet the presumptive service connection regulations. A November 2020 examiner additionally offered that the Veteran’s left leg disorder, to include a femoral artery occlusion and below the knee amputation, was the result of peripheral vascular disease. However, the examiner described the risk factors as including smoking, age, and hyperlipidemia rather than herbicide exposure. The examiner opined that it was less likely than not that the Veteran’s left leg disorder was incurred in or caused by service and similarly did not describe sufficient in-service herbicide exposure to meet the regulations for presumptive service connection. Therefore, while the November 2020 VA examinations weigh in favor of the Veteran’s claim for a prostate disorder and against his claim for a left leg disorder, they are both assigned lesser probative value and presumptive service connection on the basis of in-service herbicide exposure is not established in either case. Next, as to secondary service connection, the Veteran has asserted that the prostate disorder and left leg aneurysm were related to a service-connected disability related to herbicide exposure, to include lung and bladder cancers. However, in order to establish secondary service connection, the evidence must show a service-connected disability. The Veteran is not service connected for either lung cancer or bladder cancer. Therefore, the medical evidence does not support secondary service connection. The Board has considered medical articles submitted by the Veteran concerning the prevalence of exposure to Agent Orange in veterans. Treatise evidence may suffice to establish nexuses in instances where, “standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated medical opinion.” Sacks v. West, 11 Vet. App. 314, 317 (1998). Significantly, however, treatise materials usually are not specific enough to show nexus and that medical opinions directed at specific patients are generally more probative than medical treatises. Id. at 317; see also Herlehy v. Brown, 4 Vet. App. 122, 123 (1993). In this situation, as detailed above, while the lay and medical evidence establish that the Veteran had occasional contact with the base perimeter while serving in Thailand, they do not support a sufficient degree of herbicide exposure to satisfy the presumptive service connection regulations. Further, while medical treatise evidence can provide important support when combined with an opinion of a medical professional, such a medical nexus has not been provided as to either claim. Mattern v. West, 12 Vet. App. 222 (1999). Rather, the articles only provided a survey of the medical research without specifics as to the Veteran’s situation. As such, this evidence is not dispositive and is assigned lesser probative value. The Board has also considered the lay statements submitted by the Veteran and a fellow servicemember regarding the etiology and current severity of the disorders addressed above. Lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. However, they are not competent to offer opinions as to the etiology or specific level of disability according to the appropriate diagnostic code of any current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who have examined the Veteran during his current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the VA examination and medical treatment notes) directly address the criteria under which his disabilities are evaluated. As the clinicians have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.