Citation Nr: 21022732 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 12-05 147 DATE: April 19, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is denied. FINDING OF FACT 1. The evidence shows the Veteran served in Thailand during the Vietnam era. 2. The record does not establish that the Veteran was actually exposed to Agent Orange, or any other herbicide agent, during his active service. 3. The Veteran’s prostate cancer was not present in service and is not otherwise shown to be etiologically related to service. CONCLUSION OF LAW The criteria for service connection for prostate cancer, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from April 1968 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a video hearing in February 2014 before the undersigned Veterans Law Judge (VLJ). The Board remanded the appeal in December 2014 and requested the RO search the Joint Services Records Research Center (JSRRC) and readjudicate his claims. A response from JSRRC was received in September 2015. In a November 2017 decision, the Board denied service connection for prostate cancer, to include as due to herbicide exposure. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In September 2018, the Court granted the parties’ Joint Motion for Remand and remanded the issues back to the Board finding that the Board did not provide adequate reasons and bases for the November 2017 decision by not addressing all of the Veteran’s lay statements regarding exposure. In a November 2019 decision, the Board denied service connection for prostate cancer, to include as due to herbicide exposure. The Veteran again appealed that decision to the Court. In November 2020, the Court granted the parties’ Joint Motion for Remand and remanded the issues back to the Board finding that the Board erred when it failed to comply with a remand from the Court, by not addressing the Veteran’s February 2014 Board hearing statement that he observed chemical agents used to remove vegetation. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is denied. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110, 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Certain chronic diseases, including malignant tumors, may be service connected on a presumptive basis if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. § 1112, 38 C.F.R. §§ 3.308, 3.309. VA regulations provide that certain diseases associated with exposure to herbicide agents, such as prostate cancer, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 are met. 38 C.F.R. § 3.309. A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307. The above-mentioned regulations concerning the presumption of service connection for those exposed to an herbicide agent address themselves to individuals who served in Vietnam proper, (which includes service in the waters offshore). The Veteran in this case did not serve in Vietnam, and therefore, these provisions are not directly applicable to him. Nevertheless, VA’s Director of Compensation Services has determined that special consideration of herbicide agent exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases. VA has identified specific military occupational specialties including security policeman, security patrol dog handler and member of a security police squadron, whose daily duties required spending extended periods of time on or near the base perimeter where herbicides were likely used. Service near the base perimeter may be shown by evidence of daily work duties, performance evaluation reports or other credible evidence. VA has not extended the same special consideration to all service members who had contact with an air base perimeter. Those with periodic or occasional contact with the perimeter, but whose duty stations were not located there, are not entitled to special consideration. The Veteran is seeking service connection for prostate cancer as due to exposure to an herbicide agent. He claims that he was exposed as a result of his in-service duties while stationed in Thailand. Service records confirm the Veteran’s assignment to Thailand during this time; they also show he did not serve in Vietnam. His DD 214 lists his military occupational specialty (MOS) as a wheel vehicle repairman. Service treatment records are silent as to any treatment or diagnosis of prostate cancer. Review of post-service medical records revealed a diagnosis of prostate cancer in October 2009 and subsequent treatment. He underwent a prostatectomy in December 2009. During the February 2014 Board hearing, the Veteran stated, “when I moved in there were different barrels and different chemicals you could see had been used that I had no way of knowing what they were. But during my time there I was a mechanic.” The Board notes the Veteran later testified that, “Well, I never contend they sprayed me like they did in Vietnam. My contention was we had to live in that contaminated soil, drink the water.” In regard to witnessing spraying, the veteran testified , “They had Thais that would periodically you’d see them walking around with backpacks, spray gun backpacks, just keeping—I’m assuming they were keeping vegetation down. Because when they sprayed for mosquitoes they had a little jeep king of a vehicle with a pump, a fogging pump on it. They would drive around in the barracks and spray. But maybe this was different. They were out there constantly trying to keep the jungle from recapturing this place. And while they were there it, you know, they did a good job of it. Never did grow, I guess, is my contention. It never grew. And, of course, I was only there a very short time.” He also testified he was exposed to an herbicide agent while pulling occasional guard duty for a perimeter guard shack and guard tower, as well as when he had to dig out vehicles that had gotten stuck in the mud during monsoon season. He also reported seeing several vessels that were used to store unknown chemicals; he later indicated the chemicals were used to remove the vegetation on the base. In statements he submitted in support of his claim, the Veteran noted that he had traveled to various locations, including Ubon Air Force Base, Bangkok and Vientiane, Laos, to pick up and return vehicles and parts. He also wrote that he served as a guard for the perimeter approximately once every two weeks, and when needed, spent time digging vehicles out of the mud. The Veteran submitted several statements from individuals who served on or near his base in Thailand, and who confirmed the use of non-security personnel to perform perimeter guard duty. Only two of those statements came from individuals who served during the same time period as the Veteran; one of them stated that he had been told the use of Agent Orange on the base may have contributed to his cancer diagnosis. This individual noted that his MOS was Morse code interceptor, but that he was assigned to guard duty at the perimeter occasionally. In another statement, a fellow service member wrote that he observed Thai workers spraying chemicals on many areas around the quarters and perimeter fence at stations near Udorn, Thailand. However, he also wrote that it was unclear what chemical was being sprayed. Following the instructions of the December 2014 remand, VA reached out to the JSRRC and received a response in September 2015. This revealed JSRRC does not maintain any retired records for any radio research unit and recommended contacting the U.S. Army Intelligence and Security Command. A response from U.S. Army intelligence was received in October 2015, in which they noted that after review of relevant annual historical reports for the Veteran’s base, they could not find any details confirming whether U.S. soldiers served on guard duty, but the reports purposefully exclude operational detail. The person replying added that this should not be construed as necessarily contradicting the Veteran’s claims. A formal finding memorandum was issued in October 2015 concluding that there was no evidence to concede the Veteran’s exposure to Agent Orange. Based on a review of the evidence of record, the Board finds that service connection for prostate cancer is not warranted. The Veteran’s MOS was not as a military police officer, guard, or dog handler, such that exposure to herbicides can be found on a direct basis. Further, the Veteran’s own statements make it clear his activities, such as occasional guard duty and removing vehicles stuck in the mud, are not of a similar nature to those whose daily duties required extended periods of time at or near the base perimeter as a security policeman, dog handler or member of a security police squadron. The statements and testimony from the Veteran and fellow service members during this time period confirm the fact that non-security personnel were used to conduct guard duty at the perimeter. The Board has no reason to doubt the statements of the Veteran and his fellow servicemembers. However, these statements fail to establish a daily, frequent, or extended presence at the perimeter by non-security personnel. The Veteran stated that he performed guard duty once every two weeks. Other service members stated that performed guard duty a total of three times. The Veteran further claimed that he spent time digging vehicles out of the mud at or near the perimeter. However, at his February 2014 hearing the Veteran stated that he did not perform these activities frequently. Further, when describing these activities, the Veteran stated “[i]t wasn’t like I was there on a daily basis.” See Hearing Transcript. The Board finds, the Veteran’s statement regarding his presence at the perimeter to help remove vehicles stuck in the mud are plausible. However, his statements specifically limit the amount of time that he was present at the perimeter, thus, the frequency of such duties is not analogous to those who patrolled the perimeter on a daily or extended basis. The Board accepts the Veteran is competent to report that he saw Thais walking with spray gun back packs and assumed they were keeping vegetation down. The Board further finds the Veteran is competent to report seeing different barrels and chemicals , and that he had no way of knowing what they were. However, the Veteran has not been shown to be competent to identify herbicides, including those (2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram) for which presumptions of service connection may apply. 38 C.F.R. 3.307 §(a)(6). The Board finds that a lay person is not competent to make such an assessment. By the Veteran’s own statements he had no way of knowing what the barrels and chemicals were, and he assumed the spray guns were used to keep vegetation down. In July 2015, a VA Memorandum regarding herbicide use in Thailand during the Vietnam Era, notes the Compensation Service reviewed a listing of herbicide use and test sites outside Vietnam provided by the Department of Defense (DoD) The memorandum states that the list contains 71 sites within the U.S. and in foreign countries where tactical herbicides, such as Agent Orange, were used, tested, or stored. The memorandum further notes testing and evaluations of these tactical herbicides were conducted by or under the direction of the U.S. Army Chemical Corps, Fort Detrick, Maryland. VA noted that the memo does not contain names of individuals and it does not contain any references to references to routine base maintenance activities such as range management, brush clearing, weed killing, etc., because these vegetation control activities were conducted by the Base Civil Engineer and involved the use of commercial herbicides approved by the Armed Forces Pest Control Board. The application of commercial herbicides on military installations was conducted by certified applicators. The memorandum notes that regarding the Veteran’s Thailand service, the DoD list indicates only that limited testing of tactical herbicides was conducted in Thailand from 2 April through 8 September 1964. The memorandum notes the location identified was the Pranburi Military Reservation associated with the Replacement Training center of the Royal Thai Army, near Pranburi Thailand. The Report of these tests noted that 5 civilian and 5 military personnel from Fort Detrick, Maryland conducted the spray operations and subsequent research. This location was not near any U.S. military installation or Royal Thai Air Force Base. The memorandum notes tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand and that there are no records of tactical herbicide spraying in Thailand after 1964. The memorandum notes there are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control board and the Base Civil Engineer. Notably, the Veteran's period of active duty does not coincide with military use of tactical herbicides in Thailand. As the veteran has not been found competent to identify Agent Orange/herbicide agents, the Veteran’s contentions that he saw chemicals being sprayed cannot be taken as probative evidence he was exposed to herbicide agents during service. This is particularly so since he acknowledged he did not know what was being sprayed. Further, as neither the guard duty nor work digging vehicles out of the mud are shown to be of a nature and frequency similar to those of military security personnel, the Board cannot find exposure to herbicides on a facts found basis. In addition, the evidence does not support, and the Veteran does not contend that his diagnosis began in service or within the year following. Prostate cancer was not diagnosed until October 2009; nearly 40 years after separation from service. Therefore, service connection may not be found as having been incurred directly during service, or to be presumed to have been incurred in service as a chronic disability. For the foregoing reasons, the Board finds that, the claim for service connection for prostate cancer must be denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Johnson, 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.