Citation Nr: 21026460 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-52 936 DATE: May 3, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is granted. FINDINGS OF FACT 1. The Veteran is shown to have a prostate cancer diagnosis. 2. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran had service at U-Tapao Royal Thai Air Force Base (RTAFB), from November 24, 1969 to December 9, 1969. 3. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's duties involved service near the perimeter of RTAFB; as such, the Veteran was exposed to herbicide agents during his period of service RTAFB. CONCLUSION OF LAW The criteria for establishing service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1966 to June 1970. In September 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam War will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Prostate cancer is one of the diseases that is presumptively associated with herbicide exposure. 38 C.F.R. § 3.309(e). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C. § 1113(a); 38 C.F.R. § 3.307(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran contends that his prostate cancer is due to his active service, to include exposure to herbicide agent while serving at RTAFB from April or May 1969. The Veteran has a current carcinoma of prostate diagnosis. As such, element one under Shedden is met. In September 2016, the Veteran submitted a statement. He stated that he was exposed to Agent Orange while he was on TDY at RTAFB in April 1969. During this time, he went to the end of the runway to launch and recover airplanes which were along the perimeter of the base. In January 2017, VA noted that the Veteran's MOS was Aircraft Maintenance Specialist (KC-135), and he was assigned to 96th Organizational Maintenance Squadron (OMS) SAC. The Veteran went on TDY from November 24, 1969 to December 9, 1969. It was noted that KC-135 crew chiefs would have been deployed to Okinawa, Taiwan, Thailand, or Guam under the Young Tiger program. It was further noted that "while the 96th Strategic Aerospace Wing does mention sending its aircraft and aircrews to participate in Young Tiger, it does not note the sending of any crew chiefs." In September 2017, VA conceded the Veteran's TDY service was in Thailand from November to December 1969. During his September 2020 Board hearing, the Veteran testified that he went to RTAFB on TDY. He stated that he worked on aircrafts and was about 100 yds/ft. from the perimeter. He also stated that the fuel pits were located right on the perimeter. Additionally, whenever he took breaks, he would pass the perimeter. The Board notes that the M21 Manual concedes that herbicide agents were used at U-Tapao during the Vietnam era, which is when the Veteran served at that facility. The M21 further indicates that exposure to herbicide agents is to be conceded if the Veteran was a security policeman; security patrol dog handler; member of the security police squadron; or, "otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence." See M21-1MR, Part IV, Subpart ii.1.H.5.b. The Veteran's statements have significant probative value, as they are consistent with the time and circumstances of his service in the Air Force. Thus, the Veteran's credible statements regarding his experience at U-Tapao establish herbicide exposure in service. Accordingly, the benefit-of-the-doubt rule applies and the Veteran's claim for service connection for prostate cancer as a result of exposure to herbicides is granted on a presumptive basis. See 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.09(e), 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore 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.