Citation Nr: 21027405 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-59 589 DATE: May 5, 2021 ORDER Entitlement to service connection for prostate cancer residuals is granted. FINDING OF FACT The Veteran was exposed to herbicide agents in Thailand, and the presumption that his prostate cancer residuals are the result of such exposure has not been rebutted. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer residuals are met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1966 to March 1970, including service in Thailand. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Presumptive service connection is warranted for prostate cancer that has manifested to a compensable degree due to in-service herbicide agent exposure, pursuant to 38 C.F.R. § 3.309(e). See also 38 C.F.R. § 4.115b, Diagnostic Code 7528. However, this presumption of service incurrence may be rebutted by competent medical evidence that a claimed condition is due to an intercurrent injury or disease. See 38 C.F.R. § 3.307(d). VA regulations state that herbicide agents were used in Vietnam from January 9, 1962 to May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). VA has also applied the presumptive provisions regarding herbicide exposure to Veterans who served with the United States Air Force in Thailand during the Vietnam Era on certain Royal Thai Air Force Bases, to include U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, when the evidence establishes their duties placed them on or near the perimeters of the base, as VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. The Board takes judicial notice of a declassified report entitled Project CHECO Southeast Asia Report: Base Defense in Thailand, that shows that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Monzingo v. Shinseki, 26 Vet. App. 97, 103 (2012) (allowing for taking of judicial notice of facts of universal notoriety that are not subject to reasonable dispute); Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991) (citing Fed.R.Evid. 201 (b)). According to Project Checo, herbicide agents were approved for use in Thailand in 1969. See Project CHECO Southeast Asia Report: Base Defense in Thailand 18 Feb 73 at 67. In this case, the Veteran's military personnel records show that he served at Ubon RTAFB as an Inventory Management Specialist from March 1969 to March 1970. See Military Personnel Records. Additionally, the Veteran has given numerous accounts of his military occupational specialty (MOS) frequently placing him near the perimeter, along with his competent and credible testimony at the July 2020 Board hearing in which he stated that his duties in Ubon were with the base supply in the inventory section, which was located next to the perimeter. See July 2020 Board Hearing Transcript at 3. He testified that his sleeping quarters were within 50 feet of the perimeter, as was the latrine. Id. at 4. During the hearing he described being greeted by the security police, located at the perimeter, every morning, noting the presence of a K-9 unit as well. He noted that during high-alerts there were two occasions in which he would have to stand guard and assist the security police at the perimeter. Id. at 5-6. He also testified to being on a 2-week detail in which he had to help create a new perimeter and fortify it with barbed wire around the base. Id. at 6-7. He also noted how from the old perimeter to the new perimeter all of the vegetation was dead. Id. at 7. The Veteran has also submitted additional personal accounts, photographs, news articles, and lay statements from his fellow service members to support his claim. See Lay Statements submitted in May 2015 and September 2017; September 2015 Notice of Disagreement (NOD); September 2017 Decision Review Officer (DRO) Hearing Transcript; October 2017 Article; and November 2017 VA Form 9. Accordingly, the Board finds the Veteran's assertions as to regular, close proximity to the base perimeter at Ubon credible and consistent with the circumstances of his service and other evidence of record, and herbicide agent exposure in Thailand is conceded. 38 U.S.C. § 1154(a). Moreover, the Veteran competently and credibly reported awakening to void 2 to 3 times per night, which supports a compensable rating under DC 7528 based on voiding dysfunction. See May 2012 report from Dr. M.K.; 38 C.F.R. §§ 4.115a, 4.115b, DC 7528. Finally, the Board finds that there is insufficient evidence to rebut the presumption that the Veteran's prostate cancer residuals are related to his in-service exposure to herbicide agents, as there is no competent medical opinion of record relating the same to an intercurrent cause. Thus, the Board finds that presumptive service connection for prostate cancer residuals is established. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.