Citation Nr: 21027771 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-12 174 DATE: May 6, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure is granted. FINDING OF FACT The Veteran has been diagnosed with prostate cancer that is presumptively related to herbicide agent exposure during their military service. CONCLUSION OF LAW The criteria for entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1964 until December 1967. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902 (c). In January 2020, the Board remanded the appeal for further development. There has been substantial compliance with the Board's prior remand directive and will proceed to adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure The Veteran claims that his diagnosed prostate cancer is presumptively related to service, because they were exposed to herbicide agents during their military service. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Hickson v. West, 12 Vet. App. 247 (1999) 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 (a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. VA regulations provide that certain diseases, including prostate cancer, associated with exposure to herbicide agents 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 (a)(6) are met. 38 C.F.R. § 3.309 (e). Post service treatment records show that the Veteran was diagnosed with prostate cancer and the prostate was subsequently removed. The Veteran's military personnel records show that he served in Thailand during the Vietnam era including Ubon Airfield, Nakhon Phanom Airport, and Chiang Mai Airport. In a November 2016 statement, the Veteran reported that his return flight to the United States departed Nakhon Phanom Airport and stopped in Saigon, Republic of Vietnam for refueling. The Veteran further reported that the commander of the C-130 aircraft ordered all passengers off the aircraft while it was refueling. The Veteran submitted another statement in January 2017 repeating the details from the November 2016 statement and added the details that the flight departed Nakhon Phanom on December 19, 1967 and flew to Saigon. After refueling in Saigon, the plane continued to Tokyo, Japan for another refueling stop and then onto San Francisco, California arriving December 19, 1967. The Veteran's military personnel records show a transfer occurring on December 19, 1967. The Veteran testified that they disembarked the aircraft in Saigon, Republic of Vietnam while it was refueled and service during their return to the United States from Thailand. In an October 2020 statement, the Veteran stated that they departed Thailand on or about December 17, 1967 stopping for refueling in Saigon with approximately one hour on the ground before continuing the journey arriving in the United States on December 16, 1967 a detail the Veteran says they remember because others remarked they had arrived in the United States the day before they left Thailand. Pursuant to the Board remand, the AOJ undertook additional development to attempt to verify the Veteran's report of the travel that took them to Vietnam. In an October 2020 response to the AOJ request for information, the Air Force Historical Research Agency (AFHRA) detailed the Veteran's unit assignments and unit histories at the relevant time. AFRHA said "[t]here is no mention of any flights from Thailand, although they did put some support personnel at Nakhon Phanom RTAFB, Thailand to support Military Airlift Command aircraft." AFHRA concluded that it was unable to confirm the routing of any aircraft from Thailand to Vietnam. The Veteran has consistently reported that they disembarked the aircraft in Saigon, Republic of Vietnam during December 1967; the Board finds him credible. Affording the Veteran the benefit of the doubt, they landed in the Republic of Vietnam in December 1967 during their transfer from Thailand to the continental United States for out processing. As such, the Veteran has service in the Republic of Vietnam and is presumed to have been exposed to herbicides. The Veteran was diagnosed with prostate cancer, a disability for which there is a presumption of incurrence in service based upon exposure to herbicides; service connection for prostate cancer is granted. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.