Citation Nr: 21021154 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 17-48 796 DATE: April 9, 2021 ORDER Service connection for prostate cancer, due to exposure to an herbicide agent, is granted. Service connection for diabetes mellitus, type II (DM) is granted. Service connection for erectile dysfunction (ED), as secondary to prostate cancer, is granted. FINDINGS OF FACT 1. A July 2014 rating decision denied service connection for prostate cancer, DM, and ED; the Veteran did not timely perfect an appeal. 2. Since the July 2014 rating decision, additional evidence has been received that is new and which raises a reasonable possibility of substantiating the claims for service connection for prostate cancer, DM, and ED. 3. Resolving all doubt in favor of the Veteran, the circumstances of his service at the Royal Thai Air Force Base at Takhli in Thailand during the Vietnam era brought him near the air base perimeter and, as such, herbicide agent exposure is conceded on a facts-found basis. 4. Resolving all doubt in the Veteran’s favor, prostate cancer is attributable to service. 5. Resolving all doubt in the Veteran’s favor, DM is attributable to service. 6. The Veteran’s ED is proximately due to or aggravated by his service-connected prostate cancer. CONCLUSIONS OF LAW 1. The July 2014 rating decision, in which the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) denied service connection for prostate cancer, DM, and ED, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the July 2014 rating decision to reopen the claims of entitlement to service connection for prostate cancer, DM, and ED is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for prostate cancer are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for DM are met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 5. The criteria for service connection for ED as secondary to service-connected prostate cancer are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1963 to June 1971 with subsequent service in the Air National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2016 rating decision by a Department of Veterans Affairs (VA) AOJ. The Veteran testified before the undersigned in a February 2021 Board hearing. A transcript of the hearing is of record. New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when “new and material evidence” is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. 1. Whether new and material evidence has been received to reopen the claims of entitlement to service connection for prostate cancer, service connection for DM, and service connection for ED The Veteran’s claim for service connection for prostate cancer, DM, and ED was denied by the AOJ in a July 2014 rating decision. The July 2014 rating decision, in which the AOJ denied service connection for prostate cancer, DM, and ED is final. 38 U.S.C. § 7105. The basis for the denial was that there was no evidence of a link between the Veteran’s medical conditions and military service. Since the last prior final decision, lay evidence and medical evidence have been added to the record. VA and private treatment records establish diagnoses of carcinoma of the prostate, DM, and ED. In statements made in November 2015 and December 2015, the Veteran noted that he was part of a program while he was stationed at Royal Thai Air Force Base at Takhli in Thailand which required him to be in close proximity to the perimeter fence. He noted that he removed barriers to the aircraft located at the perimeter which was the basis of his herbicide exposure. During his February 2021 Board hearing, the Veteran testified that he would often stay, occasionally for weeks at a time, at the end of the runway at the perimeter fencing while stationed at Royal Thai Air Force Base at Takhli in Thailand to check for debris. The reason for the prior final denial was that there was no evidence establishing of a link between the Veteran’s medical conditions and military service. This recent evidence indicates that the was exposed to herbicides while on active duty service which may have caused his diagnosed medical conditions. The evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the July 2014 rating decision. Therefore, the claims of entitlement to service connection for prostate cancer, service connection for DM, and service connection for ED are reopened. Service Connection To establish service connection for a disability, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for prostate cancer and service connection for DM The Veteran contends that his prostate cancer and DM are etiologically related to his exposure to herbicide agents while stationed at the Royal Thai Air Force Base at Takhli. A May 2010 VA Compensation and Pension Bulletin indicates that that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand, which was intended to eliminate vegetation and ground cover for base security purposes. The evidence of this exposure was found in a declassified Vietnam War era Department of Defense document titled, Project CHECO Southeast Asia Report: Base Defense in Thailand. The CHECO report observed that some evidence indicated that the herbicides used on the Thailand base perimeters may have been either tactical or procured from the Republic of Vietnam, or commercial and a variant of much greater strength with the characteristics of tactical herbicides. See, e.g., Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). Thus, when herbicide-related claims involving Thailand service are received, VA must determine whether a veteran’s service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. VA ultimately determined that special consideration of herbicide exposure cases should be extended to those veterans whose duties placed them on or near the perimeters of certain Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. These provisions apply only during the Vietnam era. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veteran contends that he was exposed to Agent Orange while serving at the Royal Thai Air Force Base at Takhli. Consequently, he asserts that he is entitled to the presumptive provisions of 38 C.F.R. § 3.309, and should be awarded service connection for prostate cancer and DM based on his inservice exposure to Agent Orange and other herbicide agents in Thailand. The Veteran’s service personnel records indicate, in pertinent part, that he served at the Royal Thai Air Force Base at Takhli from July 1966 to July 1967 assigned to the 23rd Tactical Air Support Squadron of the 355th Tactical Air Support Group. He served as an aircraft maintenance specialist (crew chief). In December 2015, an airman that served with the Veteran noted that the Veteran worked as an aircraft mechanic and that part of his duties required him to perform inspections of the runway at the perimeter fence while stationed in Thailand. Also, the Veteran picked up debris and parachutes at the perimeter of the base in Thailand. A February 2016 VA administrative decision found that there was not sufficient evidence to verify herbicide exposure while the Veteran served in Thailand. However, during his February 2021 Board hearing, the Veteran testified that he would often stay, occasionally for weeks at a time, at the end of the runway at the perimeter fencing while stationed at Royal Thai Air Force Base at Takhli in Thailand to check for debris. The service records do not clearly show that the Veteran was exposed to herbicide agents while stationed in Thailand. Importantly, the Board points out that there is no requirement that exposure to herbicide agents be definitively shown by personnel records. In relevant part, 38 U.S.C. § 1154 (a) requires that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this regard, the Veteran has presented statements and evidence showing that he was required to perform work at or near the perimeter of the base as part of his MOS. In the instant case, the Veteran is competent to report that his duties took him to the perimeter of the Royal Thai Air Force Base at Takhli, and his reports are credible and consistent with the circumstances of his service as an aircraft maintenance specialist. He has been consistent in his statements and there is no explicit evidence to contradict his reports. The Board finds the statements of his fellow serviceman to be credible as it is consistent with the Veteran’s statements and the evidence of record. The Board has no reason to doubt the veracity of their statements. Therefore, the Board finds that the Veteran and his fellow service member have competently and credibly reported that the Veteran’s duties regularly brought him near the perimeter of the Royal Thai Air Force Base at Takhli. On this evidence as well as the other documentary evidence submitted by the Veteran, and utilizing the benefit of the doubt doctrine outlined in Gilbert, the Board concedes herbicide exposure on a facts-found basis and consistent with VA policy. VA and private treatment records show that the Veteran has been diagnosed with prostate cancer and DM. Therefore, as the Veteran was present at or near the perimeter of the Royal Thai Air Force Base at Takhli during the relevant timeframe and under the relevant circumstances, he has established his exposure to herbicide agents, including Agent Orange during that time. In addition, he has been shown to have prostate cancer and DM, presumptive diseases for which VA has found an association with herbicide agent exposure. As such, service connection for prostate cancer is granted and service connection for DM is granted. 38 U.S.C. §§ 1110, 1116, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. Entitlement to service connection for ED The Veteran contends that he has erectile dysfunction and it is secondary to the herein granted service-connected prostate cancer. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2015); Allen v. Brown, 7 Vet. App. 439 (1995). An April 2008 private treatment record notes that the Veteran had erectile dysfunction after being treated for prostate cancer in 2006. The Board finds that the competent medical evidence shows that the Veteran’s erectile dysfunction is proximately due to his service-connected prostate cancer and its subsequent treatment. Resolving reasonable doubt in favor of the Veteran, the Board finds that secondary service connection for erectile dysfunction is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.