Citation Nr: 21024636 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-64 476 DATE: April 23, 2021 ORDER Service connection for prostate cancer due to in-service herbicide exposure is granted. FINDING OF FACT The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran was exposed to herbicides during his service in Thailand. CONCLUSION OF LAW The criteria for presumptive service connection for prostate cancer due to in-service herbicide exposure are 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 from June 1965 to June 1985. The Veteran served at the Royal Thai Air Force Base (RTAFB) of Korat in Thailand from September 1969 to July 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing in January 2020. A transcript of the hearing is associated with the claims file and has been reviewed. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. If a veteran was exposed to an herbicide agent during active service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases for which presumptive service connection based on herbicide exposure is available include prostate cancer. Id. In-service herbicide agent exposure is presumed for veterans who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, as well as for certain service in or near the Korean Demilitarized Zone and work on C-123 aircraft. 38 C.F.R. § 3.307(a)(6). In herbicide exposure claims involving service in Thailand, in-service exposure is not presumed. VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand. The herbicide use was intended to eliminate vegetation and ground cover for base security purposes. VA has acknowledged that the herbicides used on the Thailand base perimeters may have been tactical or a commercial variant of much greater strength and with the characteristics of tactical herbicides. VA is to evaluate the treatment and personnel records to determine whether a Veteran’s service activities involved duty on or near the perimeter of the military base where the Veteran was stationed. Herbicide agent exposure should be acknowledged on a facts-found or direct basis if military occupational specialty (MOS), performance evaluations, or other credible evidence demonstrate service between January 9, 1962, and May 7, 1975 at the RTAFBs of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang and the veteran served as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the airbase perimeter. See Compensation and Pension Bulletin, New Procedures for Claims Based on Herbicide Exposure in Thailand and Korea (May 2010). The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 1. Service connection for prostate cancer After careful review of the record, presumptive service connection for prostate cancer due to in-service herbicide exposure is warranted. The competent and probative evidence warrants a finding that the Veteran was exposed to herbicide agents during his service in Thailand. Although the Veteran testified that he had boots on the ground in Vietnam during his layovers at Tan Son Nhat Air Base, it is not necessary to discuss this contention as the claim is granted on other grounds. The record contains competent evidence of a diagnosis of prostate cancer. See April 20, 2016, Medical Treatment Record – Non-Government. The threshold requirement of a current disability is met. The Veteran contends that his prostate cancer was caused by exposure to herbicides when he served at the Korat Royal Thai Air Force Base (RTAFB) in Thailand from July or August 1969 to July or August 1970. See June 1, 2016, Correspondence; April 26, 2017, Notice of Disagreement (NOD). VA confirmed that military personnel records show the Veteran served in Thailand from September 1969 to July 1970. See May 8, 2017, Deferred Rating. The Veteran’s military occupation was Telecommunications Systems Control Specialist. As the Veteran’s MOS is not one of the enumerated occupations, credible evidence that the Veteran served on or near the airbase perimeter is required to establish herbicide exposure. The Veteran has provided competent, credible, and highly probative lay statements and testimony to support his contention that he was routinely near the air base perimeter and exposed to herbicide agents. The Veteran has consistently stated that his duty station in Thailand was adjacent to the perimeter fence and within 100 yards. April 26, 2017, NOD; January 31, 2020, Hearing Transcript. The Veteran testified that he was tasked with destroying classified material at the burn area within 50 yards of the base perimeter on a weekly basis. Id.; April 26, 2017, NOD. The Veteran explained that the area around the burn site was completely bare of bushes and appeared as if it had been sprayed with an herbicide agent. See January 31, 2020, Hearing Transcript. (Continued on the next page)   The weight of the competent and probative evidence is at least in equipoise as to whether the Veteran’s duties routinely placed him on or near the perimeters of Korat RTAFB. Herbicide exposure is acknowledged on a facts-found basis. As prostate cancer is one of the diseases set forth in 38 C.F.R. § 3.309(e), presumptive service connection based on herbicide exposure is warranted. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.