Citation Nr: 21032830 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-56 652 DATE: May 28, 2021 ORDER Entitlement to service connection for residuals of dengue fever is granted. Entitlement to service connection for prostate cancer to include as secondary to toxic herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran's residual symptoms of aching all over, dizziness, and nausea are due to his dengue fever diagnosed during service. 2. The competent evidence of record does not show that the Veteran's current prostate cancer was noted during his active service, or that it is related to service, to include toxic herbicide exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of dengue fever have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for prostate cancer to include as secondary to toxic herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force from June 1961 to August 1968. In June 2019, the Board denied the Veteran's claim for service connection for residuals of dengue fever and service connection for prostate cancer. The Veteran appealed the decision to the CAVC which, in August 2020, vacated the decision and via Joint Motion for Remand (JMR), and remanded it for further development. See Tucker v. West, 11 Vet. App. 369, 374 (1998) (remand is appropriate "where the record is otherwise inadequate"). Service Connection Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). When a veteran is assigned to tropical areas during service, service connection may also be granted for certain tropical diseases, such as malaria and dengue fever, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or event occurred in service alone is not enough. There must be chronic disability resulting from that injury or event. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for residuals of dengue fever The Veteran is seeking service connection for residuals of dengue fever. The Board finds that the claim should be granted. In this case, service personnel records confirm service in the Republic of Vietnam, which is considered tropical service. Further, service treatment records (STRs) document that in March 1967 the Veteran was hospitalized due to symptoms of chills and a fever. Additionally, in June 1968, the Veteran was treated for spiking fever and chills. The treating physician noted dengue like symptoms. Therefore, the element of an in-service incurrence is met. The Veteran's post-service treatment records show treatment in July 2013 for complaints of periodic chills and fevers secondary to dengue fever. During a November 2014 infectious disease consultation, the physician noted that no fevers were recorded during the visit and dengue fever is a self-limited illness with no residual or long-term sequelae that would show up years later. An infectious diseases disability benefits questionnaire completed in April 2016 by the Veteran's private physician noted that the Veteran was diagnosed in March 1967 with dengue fever and was taken to the hospital where he stayed for 9 days due to symptoms of sweating and "talking out of his head." Further, the Veteran reported temperature spikes for 6 days following his hospital stay. The physician noted current symptoms of aching all over, dizziness, and nausea that occurs every 3 to 4 weeks that lasts several hours. The physician opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the physician stated that the Veteran was admitted overnight on March 2, 1967 for chills and fever and was seen on March 6, 1968 for follow up of admission for flu like symptoms with diagnosis of dengue fever. Therefore, it is at least likely as not that he developed dengue fever while in the military. The evidence is thus at least evenly balanced as to whether the Veteran's current symptoms of aching all over, dizziness, and nausea are residuals related to his in-service diagnose of dengue fever. As the reasonable doubt created by this relative equipoise must be resolved in favor of the Veteran, entitlement to service connection for dengue fever is warranted. 2. Entitlement to service connection for prostate cancer to include as secondary to toxic herbicide exposure The Veteran is seeking service connection for prostate cancer, to include as secondary to Agent Orange exposure. Specifically, he asserts that he was exposed to herbicides in Vietnam as well as while serving at a Royal Thai Air Force Base in Thailand. Service connection is warranted for a veteran who has been exposed to a toxic herbicide agent during active military service (subject to the requirements of 38C.F.R.§3.307(a)) for diseases such as chloracne or other acneform diseases consistent with Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, B-cell leukemias, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, chloracne and respiratory cancers, ischemic heart disease and as potentially relevant here, prostate cancer. 38C.F.R.§3.309(e). In this case, after reviewing all evidence currently of record, the Board determines that service connection for prostate cancer is not warranted. While the Veteran's medical records, including a January 2016 medical record, document active prostate cancer, the evidence does not show that the Veteran's condition is related to or had its onset during his service or within a year after separation, or that he was exposed to toxic herbicide agents and/or hazardous chemicals in service. First, the Veteran's disease cannot be attributed to herbicide agent exposure on a presumptive basis. While the Veteran served during the period from 1961 to 1968, and while prostate cancer is a disorder that may be presumed related to toxic herbicide agent exposure under 38 C.F.R. § 3.309, the evidence does not show service in Vietnam, per 38 C.F.R.§3.307(a)(6)(iii). Specifically, a response from Defense Personnel Records Information Retrieval System was negative and did not report on the Veteran or unit personnel assigned to the 4258th OMS flying bombing missions into the Republic of Vietnam (RVN) during the November 1967 through January 1968 time period. Next, the Veteran also contends that he served at RTAFB, U-Tapao, Thailand. Specifically, he testified during his April 2019 Board hearing that U-Tapao was cleared with Agent Orange. In the JMR, the parties agreed that the Board failed to consider whether the Veteran's service at U-Tapao Royal Thai Air Force Base involved work near the base of the perimeter that could have resulted in his exposure to tactical herbicides during service, or whether its reliance on the VA memorandum was consistent with Court's holding in Parseeya-Picchione, 28 Vet. App. 171 (2016), which stated that there was some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides. As an initial matter, the comprehensive arguments advanced by the Veteran's representative notwithstanding, the Board would point out that the entire concept of applying 38 C.F.R. §§ 3.307 and 3.309 to veterans serving at the RTAFBs has been based on a rather rickety foundation. Indeed, the origins of this supposed presumption reaches back to a VA Compensation and Pension bulletin from 2009, which proposed the potential possibility that veterans there were exposed to dioxin containing pesticide, based on the results of the Project CHECO Southeast Asia Report, even though that report was also rather equivocal in its findings. Based on this bulletin, VBA carved out (on its own) a specific exemption to the law that was limited to personnel who served along the perimeter of these bases. However, as of this decision, it has been 12 years since this bulletin was published and was subsequently incorporated into the M21-1. During this time, no statute has ever cemented this into law, nor does any VA regulation (to include 38 C.F.R. § 3.307 or 3.309) require the Board to consider service connection on the basis of exposure to toxic herbicides based on such service and, it should be repeated, even the original bulletin and the CHECO report aren't sure whether such toxic herbicides were even used. Indeed, despite the efforts of the JMR to write this presumption into law, it is doubtful whether the Board is bound to consider this bulletin (or the M21-1 passage) at all. See DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). Nevertheless, this question need not be answered here, as the Board finds that the special consideration envisioned by the C&P bulletin extends only to those veterans whose duties placed them on or near the perimeters of the RTAFBs. See Compensation and Pension Service Bulletin, May 2010, Sec. 2 ("Policy 211"). This bulletin, and the subsequent development manual provisions in the M21-1, make it clear that this presumption is afforded based on actual, consistent service at the border of the RTAFBs, not on mere incidental contact, to include passing through the border to come and go from the base, or to visit buildings near the border. Indeed, this is inferred in the wording in the M21-1, which limits such a presumption to specific military occupations, or to those who "otherwise served near the air base perimeter." Such a narrow interpretation is reasonable. For if the VA policy intended to provide a presumption to every single veteran who crossed the border of the base to enter and exit, or had other incidental contact with buildings near the border, it would have to provide such a presumption to nearly any veteran who set foot on one of the acknowledged RTAFBs, and potentially anywhere in Thailand. Instead, VA policy extends to those who's actual military occupational duties placed them on or near the actual perimeter of the bases in question. In this case, the Board has carefully reviewed the evidence and finds that it simply does not support a conclusion that the Veteran had regular occupational contact with the perimeter of the base, and therefor was exposed to herbicides during his service at RTAFB. Specifically, the evidence submitted (to include, but not limited to the Veteran's own statements) is limited in its description of what allegedly took him to the perimeter of the base regularly. He has not provided any detailed descriptions of the border of the base, nor has he indicated that his work took him there at any point. On the contrary, the Board has reviewed the Veteran's military personnel and service treatment records, which do not document any period where he would have been stationed at the perimeter of the RTAFB. In short, the Board finds the Veteran's own statements and other evidence are insufficient to support the underlying claim. See Caluza v. Brown, 7 Vet. App. 498 (1995) (providing factors to consider when assessing the credibility of lay evidence, to include facial plausibility, internal consistency, consistency with other evidence, self-interest or bias, bad character, malingering, erroneous recollection, time of creation of evidence, and combat vs. non-combat situation). See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (the Board is not obligated to accept as fact statements made regarding non-medical activities, such as where the Veteran was located at any given time). As exposure is not conceded, presumptive service-connection based on herbicide exposure is denied. Next, although though his primary assertions have been addressed above, the Veteran is not precluded from establishing service connection with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). However, service connection is also not warranted on this basis. Specifically, the Veteran's service treatment records show no treatment for or symptoms of prostate cancer in service, or at any of his medical examinations at or near the end of his active service, or within the presumptive one-year period after separation. In fact, the post-service evidence does not reflect symptoms related to the Veteran's claims on appeal until 2016. Specifically, the Veteran was not diagnosed until approximately January 2016. Moreover, the Veteran has never truly asserted that such symptoms have existed since service. Therefore, based on the clinical evidence of record, service connection cannot be established through continuity of symptomatology or the Veteran's statements. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). Despite the lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between his current disorder and his active duty service. However, there is no medical nexus between the Veteran's active duty and current diagnosis. As mentioned above, a current diagnosis of prostate cancer is of record. However, in light of the finding that the Veteran was not exposed to Agent Orange in service, and because there is no other indication in the record that the Veteran's prostate cancer was caused by or is related to active service, obtaining further medical examinations and opinions would not assist the Veteran. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The medical and substantive evidence of record does not show that it is as likely as not that the Veteran's current disorder is related to service, to include alleged Agent Orange exposure. In arriving at these conclusions, the Board recognizes the statements of the Veteran relating his prostate cancer to his military service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to testify regarding the etiology of prostate cancer. See Jandreau, 492 F.3d 1372 at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not have a simple identification that a layperson is competent to make. In addition, a qualified medical opinion is required to link the Veteran's current symptoms to his time in service, especially when it relates to a cancer with a multifactorial etiology. In this case, a qualified medical professional did not make such a finding. Therefore, the lay statements of belief that the Veteran's prostate cancer is related to his time in service, especially the use of Agent Orange in Vietnam, by themselves, are insufficient to establish service connection. Therefore, the claim must be denied. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica