Citation Nr: 21024384 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 19-31 278 DATE: April 22, 2021 ORDER Entitlement to service connection for prostate cancer is denied. FINDING OF FACT The preponderance of the most competent and probative evidence of record establishes the Veteran’s prostate cancer is not due to, related to, or otherwise etiologically associated with his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Introduction The Veteran served honorably on active duty in the United States Air Force during the Korean Conflict Era, Peacetime, and Vietnam Era, from August 1952 to August 1978. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2018 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is of record. At the hearing, the Veteran was granted an additional 30 days within which to submit additional evidence or argument. Finally, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires competent evidence of: (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, the so-called “nexus” requirement. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). Service connection may also 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). For specific enumerated diseases designated as “chronic,” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. For the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for chronic diseases may alternatively be established by way of continuity of symptomology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or, whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. See Gilbert, 1 Vet. App. at 53. Entitlement to service connection for prostate cancer is denied. As an initial matter, based upon the VA and non-VA medical treatment and examination evidence of record, the Board finds the Veteran has a current diagnosed disability of prostate cancer. See Holton, 557 F.3d at 1366. The Veteran underwent a VA examination in September 2018, at which time the VA examiner reported active prostate cancer diagnosed in February 2018. According to the Veteran’s treating physician, Dr. R.P.M., as of March 2021 the Veteran’s prostate cancer “is under active surveillance.” Regarding causation, the Veteran contends he had exposure to herbicide agents in Thailand while stationed at the Korat Royal Thai Air Force Base (RTAFB) as a member of the 553 Field Maintenance Squadron. Military personnel records (MPRs) confirm the Veteran was stationed at, inter alia, the Korat RTAFB for approximately one year beginning in October 1967. 38 C.F.R. § 3.309(e) provides that Veterans who were exposed to an herbicide agent during active service are entitled to presumptive service connection for certain listed diseases, including prostate cancer. Veterans who served specifically in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed to an herbicide agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). For prostate cancer, such disease need only manifest to a degree of at least 10 percent at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). As the evidence does not reflect that the Veteran served in the Republic of Vietnam, there can be no presumptive herbicide exposure based on Vietnam service under 38 C.F.R. § 3.307(a)(6)(iii). However, Vietnam Era Veterans who served in Thailand are entitled to demonstrate actual exposure to herbicides. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (holding that, even though the Veteran did not serve in Vietnam, he remains “free to pursue his claim that he was actually exposed to herbicides while” on active service). There are no regulatory or statutory presumptions regarding herbicide exposure in Thailand. However, VA will presume that a Veteran who served in Thailand between February 28, 1961, and May 7, 1975, was exposed to herbicide agents if they are: (a) Air Force Veterans who served at the Royal Thai Air Force Bases of U Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang as security policemen, security patrol dog handlers, or members of a security police squadron, or otherwise served near a base perimeter, as shown by their military occupational specialty (MOS), daily work duties, performance evaluations, or other credible evidence; (b) Army veterans who served on a Royal Thai Air Force Base who affirmatively state they were involved with perimeter security duty, but only if there is additional credible evidence supporting their statement; and (c) Veterans who served at a U.S. Army base in Thailand, were members of a military police unit or assigned a military police MOS, and who affirmatively state their duty placed them at or near the base perimeter. In the Veteran’s July 2018 statement, he expressed belief that his prostate cancer “is caused by exposure to Agent Orange.” In his October 2018 Notice of Disagreement (NOD), the Veteran indicated he performed extra duties handling foreign object damage (FOD) and runway and area clean-up work bi-weekly. Moreover, the Veteran indicated he observed the areas “outside base … [and] along fence” being sprayed. During his February 2021 hearing, the Veteran testified he was diagnosed with prostate cancer in 2018. Further, he stated during service he was stationed at the Korat RTAFB for one year and worked as an aircraft engine mechanic. According to the Veteran, he worked in “close proximity to the outside edge” of the base, approximately five to 15 feet, “[o]n a regular basis.” Additionally, the Veteran testified he went in and out of the base to go to other locations “[n]umerous times,” which also took him past the fence. The Veteran stated that his treating physician, Dr. R.P.M., told him there is “a possibility that [his] prostate cancer was … linked to the exposure to Agent Orange.” According to the Veteran, he believes “without a doubt” that his prostate cancer is due to herbicide exposure. The Board notes the Veteran also submitted a collection of various materials concerning herbicide agent use at the Korat RTAFB, as well as, an edited map of the base. The map shows the physical training and recreation areas near the perimeter fence. As noted above, the limited presumption applicable to Thailand service is very specific. It pertains to Veterans who served as security policemen, security patrol dog handlers, or members of a security police squadron, or otherwise served near a base perimeter, as shown by their MOS, daily work duties, performance evaluations, or other credible evidence. In this case, the Veteran’s MPRs, including DD Forms 214, indicate his MOS was as a reciprocating engine mechanic. As such, the evidence of record establishes that the Veteran did not serve as a security policeman, security patrol dog handler, member of a security police squadron, or was otherwise involved with perimeter security duty while stationed at the Korat RTAFB. Additionally, although the Veteran is competent to offer evidence regarding the occurrence of lay-observable events, specifically, that he regularly accessed the perimeter of the base, he has not been consistent in this account such that the Board finds it not credible. See Jandreau, 492 F.3d 1372; Rucker, 10 Vet. App. at 74. First, the Veteran’s July 2018 statement does not mention working around the base perimeter and, instead, generally indicates being “exposed to all types of elements, weather, condition” [sic], including “Agent Orange.” Next, while the Veteran’s October 2018 NOD describes performing “extra duty” handling FOD and runway and area clean-up work, as well as, observing “areas being sprayed outside base . . . [and] along fence,” it too does not mention working around the base perimeter. At the February 2021 hearing, in response to questions by his representative, the Veteran first stated that he “worked very close to the proximity of the fence.” The Board finds the inconsistencies in these accounts undermines the credibility that can be attached to the most recent account. In this matter, there is no question the Veteran is competent to relate his proximity to the base perimeter and his duties undertaken there. Thus, his competency is not at issue regarding recounting the events of service. Rather, it is the credibility of the Veteran’s most recent account (i.e., “worked very close to the proximity of the fence”) which the Board finds is lacking. Simply put, the initial accounts are more convincing than the Veteran’s later statement made after being told the reasons for the denial of the claim. Further, the Veteran’s MPRs do not include daily work duties, performance evaluations, or other evidence suggesting he served near the base perimeter as a reciprocating engine mechanic. The Board also observes that an August 2019 VA Memorandum found “the VA lacks the information … to verify herbicide exposure in Thailand.” The Board finds there is no presumption of herbicide exposure; and, that the Veteran’s description of actual exposure is not competent. In Bardwell v. Shinseki, the Court held that a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service. 24 Vet. App. 36 (2010). It was noted that in contrast to situations involving alleged medical symptoms or injury, a non-combat Veteran’s lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident. In this case, the Veteran has not demonstrated that he is competent to detect herbicides. To summarize the Board’s findings with respect to presumptive service connection, the Board finds that the Veteran was not actually exposed to herbicide agents during service. Moreover, as the Veteran was diagnosed with prostate cancer almost 40 years after separation from service, with no evidence of record regarding continuity of symptomology since discharge, the Board finds that no presumptive chronic disease became manifest to the requisite extent within one year of service separation. 38 C.F.R. §§ 3.303, 3.307, 3.309. Following the hearing, in a March 2021 private medical opinion by Dr. K.E.B., the Veteran’s treating urologist, he noted the Veteran “has a history of Agent Orange exposure in Vietnam.” According to Dr. K.E.B., “[i]n [his] medical opinion, it is more likely than not that his prostate cancer is service related.” Also, in March 2021, the Veteran’s treating physician, Dr. R.P.M., authored a statement wherein he identified the Veteran as “a long-term patient” of his, and noted the Veteran’s diagnosis of prostate cancer in February 2018. Dr. R.P.M. noted the Veteran “had previous exposure to [A]gent [O]range.” Regarding the opinions of Drs. K.E.B. and R.P.M., the Board finds they are fundamentally inconsistent with the facts found by the Board. The opinions are based upon the Veteran’s asserted herbicide exposure, which the Board finds did not occur. Also, the abbreviated opinions are conclusory and lack supporting data and reasoned medical explanations. Further, Dr. K.E.B. incorrectly noted “a history of Agent Orange exposure in Vietnam,” although the Veteran never served in Vietnam. As a result, the Board assigns these opinions no probative weight when compared with the other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In sum, the Board finds that the Veteran’s current prostate cancer is not related to military service. Based upon these findings, the Board concludes that service connection for the claimed disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.