Citation Nr: 21029345 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-09 685 DATE: May 13, 2021 ORDER Service connection for prostate cancer, to include as due to herbicide exposure is granted. REMANDED Service connection for urinary incontinence, to include as secondary to prostate cancer, is remanded. Service connection for erectile dysfunction, to include as secondary to prostate cancer, is remanded. FINDINGS OF FACT 1. Based on his competent and credible assertion of having served in close proximity to the perimeter of the U-Tapao Air Force Base in Thailand, and resolving doubt in his favor, the Veteran is presumed to have been exposed to herbicides during active service. 2. The Veteran has prostate cancer, which is presumed to be related to his exposure to herbicides during his active service in Thailand. CONCLUSION OF LAW The criteria for service connection for prostate cancer, to include as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1154; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from March 1966 to January 1970, to include additional service in the Michigan Air National Guard. He testified at a Board hearing in December 2019 before a Veterans Law Judge who has since retired from the Board. A transcript of that hearing is associated with the claims file. The Veteran was offered the opportunity a second hearing, but he declined. In February 2020, the Veteran's appeals were denied by the Board which was then vacated by the Court of Appeals for Veterans Claims (Court), and returned to the Board for compliance with the November 2020 Joint Motion for Remand (JMR). Following the JMR, in April 2021 the Veteran's attorney requested a 90-day stay of adjudication to submit additional evidence in support of the appeal. As the Board is herein granting the Veteran's claim for service connection for prostate cancer, to include as due to herbicide exposure, and remanding the claims of service connection for urinary incontinence and erectile dysfunction, the Veteran is not prejudiced by the issuance of this favorable decision at this time, as the Veteran and his representative will have at least 90 days to supplement the record before it returns to the Board post-remand. Service connection for prostate cancer, to include as due to herbicide exposure The Veteran contends that service connection for prostate cancer is warranted due to exposure to herbicide agents while stationed in Thailand. In the October 2011 statement in support of claim, the Veteran asserted that he was on land in Vietnam in 1968 and exposed to Agent Orange. In a March 2013 statement from the Veteran, he stated that he was assigned to the 379th Bomb Squadron, SAC in July 1966, as a jet engine mechanic. He also stated that in July 1968, he was stationed on U-Tapao Thai Air Base, Thailand, for Project Young Tiger. At the December 2019 Board hearing, the Veteran stated his duties often took place on the perimeter of the air base. The Veteran also submitted photographs to support his claim that he served in Thailand on the air base. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). "To establish a right to compensation for a present disability, a Veteran must show: "(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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, prostate cancer shall be service connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309 (e). VA has adopted a procedure for verifying exposure to herbicides in Thailand during the Vietnam era. In governing manuals and procedures, 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. Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis. These provisions apply only during the Vietnam era. In this case, the medical evidence of record shows the Veteran has been diagnosed with prostate cancer. Accordingly, the record shows that the Veteran has a current disability of prostate cancer, and if the Veteran is found to have been exposed to an herbicide agent during military service, presumptive service connection is warranted for the Veteran's claim. The Veteran's DD Form 214 lists his military occupational specialty (MOS) as a jet aircraft mechanic. The Board notes that a jet aircraft mechanic is not one of the MOSs listed in VA procedures and manuals as one being presumed to have been performed at or near an air base perimeter. Furthermore, in this case, the Veteran's service personnel records do not show that he served in Vietnam or Thailand. A February 2013, the RO issued a formal finding for lack of information required to corroborate herbicide exposure associated with a claim for service connection for Agent Orange conditions. The Board notes, however, while this finding pertained to whether the Veteran was exposed to herbicides in Vietnam, it did not make a finding on whether the Veteran was exposed to herbicides during his time in Thailand. However, the Veteran submitted a March 2019 statement from D.J.S., who reported that he served with the Veteran in U-Tapao Thai Air Force Base, while service a 12 month tour. He verified that the Veteran was there for Project Young Tiger for sixty days from June 1968 to August 1968. He confirmed the veteran was assigned to the engine shop performing his duties as a jet engine mechanic. D.J.S. stated that "[o]ne of our duties as jet engine mechanics required us to be in the perimeter of the base at different times to test-run the jet engines, which stirred up a lot of dust and debris from the outlying area." In summary, the evidence of record shows that the Veteran served during the Vietnam era at the U-Tapao Thai Air Force Base, and he has presented lay testimony and evidence, such as the statement of D.J.S. and photographs, showing that he was stationed in Thailand and required to perform duties around the base perimeter as part of his MOS. The Veteran testified credibly that that he was required to travel along the base perimeter and beyond. The Veteran is competent to report his activities while at U-Tapao Thai Air Force Base. The Board finds no basis in the record to question the Veteran's credibility regarding his statements. See 38 U.S.C. § 1154 (a). The Veteran's statements and the evidence indicate that he had contact with the base perimeter while stationed at the U-Tapao Thai Air Force Base. The Veteran's statements as to the location and the type of duties he performed while stationed in Thailand are competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. In the present case, the Veteran has presented "other credible evidence" that he served at or near the perimeter of the U-Tapao Air Force Base. The Veteran's testimony and other supporting evidence, taken in conjunction with the information regarding herbicide use in Thailand, supports a finding that the Veteran should be presumed to have been exposed to herbicides during his active service. The Veteran's post-service medical records reflect diagnoses of prostate cancer. Therefore, service connection for prostate cancer is warranted on a presumptive direct-incurrence basis. See 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS FOR REMAND 1. Service connection for urinary incontinence and erectile dysfunction, to include as secondary to prostate cancer, is remanded. The Veteran contends that his urinary incontinence and erectile dysfunction are attributable to his history of prostate cancer. The Board notes that despite reports of symptomatology of urinary incontinence and erectile dysfunction, it is unclear whether the Veteran has a diagnosis of these disorders. Furthermore, while these disorders may be related to the Veteran's prostate cancer, such an etiological link has not been explicitly drawn by treating providers in the record, the Veteran has not yet been afforded a VA examination to provide such a link, and the Board does not have the authority to supply a medical opinion furnishing such a link. As such, a remand is necessary so that the Veteran may be afforded a VA examination exploring the etiology of his urinary incontinence and erectile dysfunction, to include the claimed relationship between those disorders and the Veteran's service-connected prostate cancer and residuals. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to clarify whether he has a diagnosis of urinary incontinence and erectile dysfunction. If so, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that urinary incontinence and/or erectile dysfunction were either a) caused by his service connected prostate cancer, or b) aggravated (made worse) by his service connected prostate cancer? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.