Citation Nr: 21009754 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-62 290 DATE: February 23, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is granted. REMANDED Entitlement to service connection for meningioma (claimed as a brain tumor/cancer), to include as due to herbicide exposure and exposure to radiation, is remanded. Entitlement to service connection for seizures, to include as secondary to meningioma (claimed as a brain tumor/cancer), is remanded. FINDING OF FACT The Veteran was exposed to herbicide agents while stationed at U-Tapao Royal Thai Air Force Base, and his prostate cancer is presumed due to his herbicide exposure. CONCLUSION OF LAW Prostate cancer may be presumed under law to have been caused by exposure to herbicide agents at U-Tapao Royal Thai Air Force Base; service connection is therefore warranted. 38 U.S.C. §§ 1110, 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 November 1968 to October 1972. His service includes service in Thailand in support of the Vietnam conflict. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter agency of original jurisdiction or AOJ). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board virtual hearing in April 2020. The transcript is of record. 1. Service connection for prostate cancer, to include as due to herbicide exposure The Veteran is seeking service connection for prostate cancer, which he asserts developed as a result of his exposure to herbicide agents when he was stationed at the U-Tapao Royal Thai Air Force Base. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in the line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability first manifested during service and has continued since service to the present time. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The Board notes that there are no statutory or regulatory presumptions regarding herbicide exposure in Thailand. However, VA will presume that a Veteran who served in Thailand during the Vietnam War Era was 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. If a veteran was exposed to an herbicide agent during active military, naval, or air service, a specified list of diseases shall be service connected if manifest to a compensable degree of 10 percent or more at any time after service. The list of diseases associated with exposure to certain herbicide agents includes prostate cancer. 38 C.F.R. § 3.309(e). The record shows that the Veteran has a current diagnosis of prostate cancer. See September 2008 Providence Medford Treatment Record. Therefore, the critical question in this case is whether the Veteran, who served in the Air Force, served at or near the perimeter while he was stationed at U-Tapao. If so, it may reasonably be conceded that he was exposed to herbicide agents while serving in Thailand. The Veteran’s military personnel records document that he served as a Bomb Navigation Mechanic at the U-Tapao base beginning in October 1971. During the April 2020 Board hearing, the Veteran credibly testified that his duties in service placed him close to the perimeter of the air base. He testified that when he crossed the perimeter through the main gate, he noticed that all of the vegetation had been destroyed. In a May 2018 statement, the Veteran reported that there was a creek located outside the air base that passed through the perimeter into the base, and that he had fallen in the creek while crossing near it one day. During the hearing, the Veteran reported that he had developed a high fever and rash after falling into the creek, and July 1972 service treatment records noted that the Veteran had a high fever. During the Board hearing, the Veteran also testified that his barracks were located about 200 feet away from the air base perimeter. In January 2019 correspondence, the Veteran cited to an Army Field Manual involving Tactical Deployment of Herbicides describing a 500-meter drift zone for herbicides. He also submitted several maps of the U-Tapao Royal Thai base, where he identified the location of his barracks within 500 meters of the perimeter. Thus, resolving all doubt in favor of the Veteran, the Board finds that the Veteran was exposed to herbicide agents during service as the Veteran placed himself as within the drift zone for herbicide spraying. Application of the presumption established for Vietnam veterans serves to show a causal relationship between herbicide exposure in Thailand and prostate cancer. Therefore, service connection for prostate cancer is warranted and the claim is granted. REASONS FOR REMAND The Veteran contends that he developed a brain tumor, or meningioma, and seizures due to service. During the April 2020 Board hearing, the Veteran testified that he may have been exposed to radiation while working on B-52 model aircrafts, which may have caused his meningioma. He further asserted that his meningioma, or brain lesions, caused his seizures. The Veteran also testified that he developed Dengue Fever and Chikungunya Titers, a type of shaking disease, during service which may have caused or contributed to his meningioma and seizures. In addition, the Veteran also asserts that his exposure to herbicide agents during service, may have also caused these disabilities. June 2011 private treatment records confirm that the Veteran was diagnosed with a tentorial dural-based mass most consistent with a meningioma. An earlier July 2009 private treatment record also notes a medial tentorial mass, likely a meningioma, and that the Veteran has a seizure disorder that is probably related to his meningioma. The examiner commented that the mass was not growing which made likelihood of a malignancy unlikely. July 1972 service treatment records show that the Veteran sought treatment for a headache, and his September 1972 separation examination documented frequent headaches associated with Dengue Fever and Chikungunya Titers. A January 1973 examination also documented that the Veteran had a history of recurrent headaches. During the April 2020 Board hearing, the Veteran reported that he had filed a claim following service, for residuals of his Dengue fever, for symptoms that included tremors and involuntary movement. A February 1973 rating decision shows that the Veteran’s claim for residuals of Dengue Fever, to include numbness of the toes, was denied. Service connection can also be pursued on the basis of exposure to ionizing radiation and the subsequent development of a radiogenic disease. 38 C.F.R. § 3.311. In this case, as noted above, the Veteran’s post-service medical records show that he has a tentorial dural-based mass most consistent with a meningioma. The AOJ has presumed the diagnosis as brain “cancer” which would be deemed a radiogenic disease under 38 C.F.R. § 3.311(b)(2). However, the medical evidence currently of record indicates that it is unlikely that this tumor is malignant in nature. Nonetheless, the Veteran has submitted an article generally discussing that meningiomas could be induced by radiation. See 38 C.F.R. § 3.311(b)(4) (applying the development provisions of (b)(2) where there is competent evidence that the claimed disease is a radiogenic disease). The Veteran asserts exposure to ionizing radiation during duties while aboard B-52 bombers. Based upon these allegations and the assumption that the Veteran had a form of brain cancer, the AOJ attempted to develop this “other exposure” claim under the special development procedures of 38 C.F.R. § 3.311(a)(2)(iii). The AOJ has obtained the Veteran’s personnel records and specifically searched for radiation risk records in 2011, and specific searched in 2013 for whether a DD 1141 was maintained on behalf of the Veteran. There is no service record of ionizing radiation exposure. In a May 2013 Department of the Air Force memorandum, it was noted that no external or internal exposure data was confirmed for the Veteran. However, the memorandum also indicated that a more complete investigation could be accomplished if additional information was provided. The Board observes that microwaves are a form of non-ionizing radiation. See Rucker v. Brown, 10 Vet. App. 67, (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984). At the hearing, the Veteran was notified of his right to submit any additional information as to whether he came within proximity to any radar component, to include a “wave guide,” which suggested that he may have been exposed to ionizing radiation. No further information has been provided. Based upon the entirety of the record, the Board does not find that the record suggests that the Veteran was exposed to ionizing radiation rather than non-ionizing radiation and, as such, no further development is warranted at this time. Nevertheless, the Veteran has submitted an article discussing that meningiomas grow very slowly with the most common symptoms including headaches, seizures, blurred vision, weakness in arms or legs, numbness and speech problems. The Veteran had frequent headaches in service which were then medically attributed to a history of Dengue Fever and Chikungunya Titers and reported experiencing toe numbness. He also testified to recurrent tremors and involuntary movements since service. The Board is not competent to address whether these were the initial symptoms of meningioma and/or seizures. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board finds that a remand is necessary to obtain a VA examination that addresses whether the Veteran’s meningioma and/or seizure disorder first manifested in service or within one year of service. The Board notes that, under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The third prong, requiring that the evidence of record “indicate” that “a disability, or persistent or recurrent symptoms of a disability, ‘may be associated with the claimant’s... service,’“ establishes a “low threshold.” McLendon, 20 Vet. App. at 83. “The types of evidence that ‘indicate’ that a current disability ‘may be associated’ with military service include... medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.” Id. Notably, a claimant’s “conclusory generalized statement” that his or her current disability is related to service is insufficient to trigger VA’s duty to provide a medical examination or opinion. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). The Federal Circuit explained, “[s]ince all veterans could make such a statement, this theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations as a matter of course in virtually every veteran’s disability case.” Id. The Board further notes that the Veteran generally asserts that his meningioma is related to herbicide exposure in service. The current information of record suggests that the meningioma is unlikely malignant in nature. However, the record reflects that the Veteran has undergone subsequent monitoring of this tumor and that VA clinic personnel have received these records. See VA Non VA Care Coordination note dated October 1, 2013 (noting receipt of records from Providence Medford Medical Center/Medford Neurology) and VA Non VA Care Coordination note dated September 16, 2016 (noting documents scanned into VistA Imaging). As these records are in VA’s constructive possession, these records should be associated with the claims folder on remand. With respect to his theory of being due to herbicide exposure, there is no competent evidence currently of record suggesting that a meningioma is due to herbicide exposure. Notably, the Veteran sent in an article discussing a causal relationship between meningioma and pesticides – not herbicides. He is encouraged to submit any articles suggesting an association with herbicides, and/or Dengue Fever and Chikungunya Titers in order to trigger VA’s duty to obtain an opinion. The Board further notes that the Veteran’s seizures have been medically attributed to his meningioma. Thus, the issue of service connection for seizures on a secondary basis must be deferred as inextricably intertwined with the service connection claim for meningioma. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his meningioma and seizures including requesting complete records from Providence Medford Medical Center/Medford Neurology. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. The Veteran should be requested to submit any form of evidence that his duties as a Bomb Navigational Mechanic exposed him to any component emitting ionizing radiation. The Veteran should be invited to submit any medical treatises associating meningioma with herbicide exposure, and/or Dengue Fever and Chikungunya Titers. 3. The AOJ should also obtain any outstanding VA medical records, including private medical reports that may have been scanned into a separate system such as VistA Imaging. See VA Non VA Care Coordination note dated October 1, 2013 (noting receipt of records from Providence Medford Medical Center/Medford Neurology) and VA Non VA Care Coordination note dated September 16, 2016 (noting documents scanned into VistA Imaging). The AOJ should document all efforts undertaken and the responses received. 4. After any additional records are associated with the claims file, the AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner to conduct an examination and obtain an opinion as to whether the Veteran’s meningioma and/or seizures first manifested in service or within one year of service? In so doing, the examiner consider the medical article discussing that meningiomas grow very slowly with the most common symptoms including headaches, seizures, blurred vision, weakness in arms or legs, numbness and speech problems, and discuss whether there is any medical reason to accept or reject that the meningioma and/or seizures had been present during service or within one year of service given the history of frequent headaches as well as toe numbness in service which were then medically attributed to a history of Dengue Fever and Chikungunya Titers, the report of recurrent headaches on VA examination in 1973 wherein the Veteran described continued left sided temporal pain but no further toe numbness since service, the April 2020 testimony regarding recurrent episodes of involuntary head shaking/tremors since service. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. He or she should specifically consider the medical articles submitted by the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Saikh, 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.