Citation Nr: 21015342 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 19-31 706 DATE: March 17, 2021 ORDER Service connection for prostate cancer is granted. Service connection for diabetes mellitus (DM) is granted. FINDINGS OF FACT 1. The Veteran served at the Royal Thai Air Force Based (RTAFB) in Nakhon Phanom, Thailand, in 1967 and 1968. 2. The evidence of record is in equipoise as to whether the Veteran’s in-service duties as a communications specialist brought the Veteran to the air base perimeter on a regular basis; exposure to herbicide agents is conceded. 3. The Veteran’s prostate cancer is presumed to be related to his exposure to herbicide agents during his active military service. 4. The Veteran’s DM is presumed to be related to his exposure to herbicide agents during his active military service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for prostate adenocarcinoma have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a) (2020). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for presumptive service connection for DM have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to March 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Service Connection for prostate cancer. 2. Service Connection for DM. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime) (2012); 38 C.F.R. § 3.303(a) (2020). 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) (2020). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Prostate cancer and diabetes mellitus, type II, are chronic diseases under 38 C.F.R. § 3.309(a) (2020); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) (2020) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b) (2020), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as “chronic” in 38 C.F.R. § 3.309(a) (2020). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2020). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309(c), 3.313 (2020). This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Additionally, VA’s Compensation & Pension Service (C&P) has issued information concerning the use of herbicides in Thailand during the Vietnam War and determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of Thailand military bases during the period beginning on January 9, 1962 and ending on May 8, 1975. There were several Royal Thai Air Force Bases (RTAFBs) in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, and pursuant to the VA Adjudication Manual, herbicide exposure should be acknowledged on a facts found or direct basis if a United States Air Force veteran served at one of the RTAFBs as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence. The following diseases are deemed associated with herbicide exposure under VA law: AL amyloidosis, Chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Multiple myeloma, Non-Hodgkin’s lymphoma, Parkinson’s disease, early onset peripheral neuropathy, Porphyria cutanea tarda, Prostate cancer, Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and Soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(c) (2020). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The Veteran seeks service connection for prostate cancer and DM on the basis of exposure to the herbicide, Agent Orange, while stationed at the Royal Thai Air Force Base (RTAFB) in Nakhon Phanom, Thailand, in 1967 and 1968. Initially, the Board finds that the Veteran is diagnosed with both prostate cancer and DM. Multiple VA and private treatment records, including VA October 2017 examination reports, reflect that the Veteran is currently diagnosed with prostate cancer and DM. Having reviewed all the evidence of record, the Board finds the evidence of record at least in equipoise as to the question of whether the Veteran was exposed to herbicides during service. Per a DD Form 214, the Veteran worked as communications center specialist during service. Service personnel records (SPRs) show that the Veteran was a part of the 187th Communications Squadron at the RTAFB in Nakhon Phanom, Thailand, for approximately one year in 1967 and 1968. Throughout the course of this appeal, including in March 2021 testimony, the Veteran has consistently asserted being exposed to the herbicide, Agent Orange, while stationed at Nakhon Phanom Air Base. Specifically, in his testimony, the Veteran said that his duty station was near the perimeter (a few hundred feet away). He walked to work from one end of the compound to the other which also involved being near the perimeter. He explained that there was a lack of vegetation in the area. Of record are several copies of photographs to reflect the lack of greenery. In an April 2018 request, the Agency of Original Jurisdiction (AOJ) directed inquiry to the Joint Services Records Research Center (JSRRC) to ascertain whether the Veteran’s duties at Nakhon Phanom Air Base would have placed him at, or in close proximity to, the base perimeter. It was noted that the Veteran stated that he was assigned to a classified communications site about half a mile outside the perimeter of Nakhon Phanom RTAFB. It was also noted that the Veteran stated that while assigned to the site, he walked through the cleared areas around the base. In an April 2018 JSRRC Memorandum response, it was noted that limited testing of tactical herbicides was conducted in Thailand in 1964 in a location that was not near any U.S. military installation, to include the base in Nakhon, Thailand. There was some sporadic use of non-tactical (commercial) herbicides within fenced perimeters. If a Veteran’s military occupational specialty (MOS) or unit was one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to herbicides. Security police units were known to have walked the perimeters, especially dog handlers. There were no records, however, to show that the same tactical herbicides used in Vietnam were used in Thailand. Additional information was obtained in April 2018 from the Defense Personnel Records Information Retrieval System (DPRIS) which corroborates that communications sites were active at Nakhon Phanom during 1968. However, the unit histories did not provide the locations of the classified or off-site communication sites during the reporting period. The unit histories also did not report that unit personnel who were performing daily duties at or near communication sites at the base were exposed to Agent Orange or tactical herbicides. Moreover, there was no documentation or evidence found in the holdings of the Historical Research Agency showing that tactical herbicides were ever used on any USAF installation in Thailand, for vegetation control during the Vietnam era. Having considered all the evidence of record, the Board finds that the evidence supports that in-service duties as a communications center specialist resulted in the Veteran being stationed at RTAFB in Nakhon, Phanom, Thailand, for approximately one year in 1967 and 1968. As discussed above, the Veteran was stationed at Nakhon Phanom Air Base during a period of time in which non-tactical commercial) herbicides were used within fenced perimeters. The Board finds it credible that the Veteran’s responsibilities would have included his presence in regular close proximity to the base perimeters in his job and while on his walking commute. Further, absent any evidence of record to the contrary, the Board finds the Veteran’s statements as to his close proximity to the base perimeters of Nakhon Phanom Air Base to be credible. In sum, the Veteran is currently diagnosed with prostate cancer and DM, which are presumptively associated with herbicide exposure. While stationed at the RTAFB in Nakhon Phanom, Thailand, from 1967 to 1968, the Veteran’s in-service duties as a communications center specialist brought the Veteran to the air base perimeter on a regular basis. Such evidence warrants the grant of service connection for both prostate cancer and DM on a presumptive basis. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104 (2012). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.