Citation Nr: 21041853 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 14-29 107A DATE: July 10, 2021 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide exposure is denied. FINDINGS OF FACT 1. The Veteran served in Thailand from January 1968 to December 1968 at Korat RTAFB and the most probative evidence is against finding that the Veteran's duties placed him on or near the defoliated perimeters of the RTAFB, and thus he was not exposed to herbicides during service on a facts found basis. 2. Prostate cancer was not manifest in service or within one year of separation and is not related to service. CONCLUSION OF LAW Prostate cancer was not incurred in, or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5013, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from April 1965 to December 1968. This matter is before the Board of Veteran's Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board denied the Veteran's claim in an April 16, 2018, decision and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (Joint Motion), and a February 22, 2019, Order of the Court vacated the Board's decision that denied the Veteran's claim for prostate cancer due to herbicide exposure because it did not satisfy its duty to assist. In September 2019, the Board remanded this issue to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303(d). Service connection for chronic disease may be granted if manifest 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. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Here, malignant tumors are listed as an applicable chronic disease. Additionally, prostate cancer is listed as a disease associated with exposure to certain herbicide agents. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. As to herbicide exposure Veterans 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. For United States Air Force Veterans serving at certain Royal Thai Air Bases (RTAFB) during the Vietnam era, including Korat, herbicide exposure should be acknowledged on a facts found or direct basis if the Veteran served at one of the air bases as a security policeman, a security patrol dog handler, a member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS, performance evaluations, or other credible evidence. Special consideration is to be given to Veterans whose duties placed them on or near the perimeter of Thailand military bases. 38 C.F.R. § 3.307(a)(6)(ii) (2019). The Veteran served in the Air Force stationed in Thailand from January 1968 to August 1968, and he was stationed at the Korat RTAFB. However, and as discussed below he does not meet the requirements for exposure to herbicides for Air Force veterans who served on or near the perimeter of air bases in Thailand on a facts found basis. See 38 C.F.R. § 3.307(a)(6)(iv). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -7641 (2003). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Board notes that the Veteran is not asserting that his claimed disability resulted from him engaging in combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154(b) (2020) are not applicable. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for prostate cancer, to include as due to herbicide exposure The Veteran contends he is entitled to service connection for prostate cancer as a result of in-service exposure to herbicides while stationed in Thailand. The Veteran was an inventory management specialist in the Air Force. He was stationed in Thailand from January 1968 to December 1968. Specifically, while stationed in Thailand the Veteran reported he underwent training as a firefighter, completing an auxiliary firefighter training course in April 1968 and was assigned additional duties placing him on the flight lines. Service records contain a certificate of completion of the training course. The Veteran has reported while stationed at Korat RTAFB, the runways and surrounding areas were defoliated, and he had ongoing training on the flight line resulting in his exposure to herbicides. The Veteran is competent to describe his ongoing symptoms and in-service duties and his statements as to his training and work on the flight line are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran has a diagnosis of prostate cancer. See January 7, 2011 private treatment record. Private treatment records note adenocarcinoma, with a Gleason score of 6, and a tumor involving both lobes of the prostate. The Veteran contends his in-service exposure to herbicides resulted in his prostate cancer. The Veteran's service treatment records (STRs) have been associated with the claims file. At separation on the report of medical examination clinical evaluation of the genitourinary system was normal. See October 29, 1968 report of medical examination. The Veteran's personnel records have been associated with the claims file. The Veteran's DD 214 notes his Military Occupational Specialty (MOS) was an inventory management specialist. The Veteran served in Thailand from January 1968 to December 1968. Personnel records note the Veteran was assigned to the 388th Supply Squadron. Additionally, personnel records note in April 1968 the Veteran underwent training and completed a course as an auxiliary firefighter. A December 2011 VA Request for Information noted there was no record of exposure to herbicides. See December 23, 2011 VA Request for Information. In July 2012 a request was sent to Joint Service Records Research Center (JSRRC) to obtain additional information regarding the Veteran's potential exposure to herbicides while stationed in Thailand. See July 24, 2012 JSRRC Request. An August 2012 DPRIS response noted that research of the available records for the 388th Supply Squadron, 388th Tactical Fighter, did not report on the Veteran's fire fighter training or that the unit or unit members were exposed to herbicides. Further, no information was provided concerning the unit and its proximity to the base perimeter. See August 27, DPRIS response. Pursuant to the September 2019 Board remand, another request was sent to the JSRRC in November 2019. A May 2021 Records Research Response (RRR) document stated that a, "professional researcher from the Veterans Benefits Administration, Compensation Service, Military Records Research Center, [had] completed comprehensive research on the Veteran's claimed herbicide exposure while assigned to the 388th Supply Squadron at Korat Royal Thai Air Force Base and performing their duties as an auxiliary firefighter on the flight line from January 1968 to December 1968. The following source was reviewed in an attempt to substantiate the Veteran's claimed herbicide exposure. [They] partnered with The Air Force Historical Research Agency (AFHRA), custodian of Air Force unit records for the [V[eterans claimed herbicide exposure. AFHRA was unable to confirm the exposure event claimed by the [V]eteran." The RRR document concluded that "no evidence was located to support documentation of the claimed herbicide exposure." Although the Veteran has reported that he believes he was generally exposed to herbicides in Thailand while working as an auxiliary firefighter and completing training and additional duties on the flight line, the Board finds that the official service department records are more probative and persuasive than his unspecific lay assertions. The Veteran did not report, and his duties do not suggest, that he had physical contact with herbicide agents or residuals of these chemicals. As the Veteran reported, defoliation whether by commercial or tactical herbicide compounds was accomplished to clear vegetation between the perimeter and the location of aircraft and facilities. It is not likely that aircraft or flammable components or material were stored in these areas as the purpose of any defoliation was to keep them clear. The Veteran has not reported that his fire-fighting duties took him into the defoliated areas where he made contact with the chemicals or residue. Moreover, it is not credible that these duties would do so. Any firefighting would be accomplished at the location of the aircraft and facilities and not in a defoliated area. Further, the Veteran has not alleged that his duties as an inventory management specialist resulted in him serving near the air base perimeter that would have required him to go into defoliated areas. Additionally, the Veteran has not alleged, and records do not suggest that he served as a security policeman, security patrol dog handler or member of a security police squadron. As such there is no probative evidence indicating the Veteran was exposed to herbicides during service, and presumptive service connection for prostate cancer is not warranted. See 38 C.F.R. § 3.307, 3.309. As to direct service connection, there is no competent evidence to suggest that the Veteran's prostate cancer is otherwise related to service. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. The Board notes that the Veteran has not been afforded a VA examination as to his prostate cancer, and the Board finds that no examination or opinion is necessary for this claim. The Board finds that there was no evidence establishing than an event, injury, or disease occurred in service. Additionally, there is not an indication that the current disability or symptoms may be associated with service other than the Veteran's assertion of exposure to herbicide agents. There is sufficient medical evidence to make a decision on the claim. As such, pursuant to McLendon, a VA examination and opinion is not warranted. VA and private treatment records have been associated with the claims file and are absent indications of a relationship between the Veteran's prostate cancer and his service. While the Veteran has reported that his current prostate cancer is a result of exposure to herbicides in-service the Board finds these are outweighed by the more credible and probative evidence of record. A private examination has been associated with the claims file. An April 2014 prostate cancer disability benefits questionnaire (DBQ) noted that the Veteran was diagnosed with prostate cancer in January 2011. See April 2014 private DBQ. The examination noted the Veteran underwent brachytherapy treatment for prostate cancer and was in remission. Current symptoms included a voiding dysfunction and erectile dysfunction. After consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against finding that entitlement to service connection for prostate cancer is warranted. There is no competent evidence to suggest that the Veteran's prostate cancer is otherwise related to service. None of the private or VA treatment records or examination suggests any potential relationship between his current prostate cancer and service. The Board recognizes that the Veteran asserts that his prostate cancer is related to service, specifically herbicide exposure. However, while the Veteran is competent to testify to in-service events, the record does not reflect that he has the requisite training or expertise to offer a medical opinion linking a current disability to service decades earlier, and he has not stated that a competent medical profession has made such attribution. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds that the Veteran's prostate cancer is not related to service and service connection is not warranted. The Board notes the Veteran contended in his October 2012 notice of disagreement that service connection was warranted for prostate cancer based on a prior Board decision which granted service connection for a Veteran's cancer as a result of exposure to herbicides while stationed in Thailand. Board decisions are not precedential, and the Board finds that the decision is not persuasive in this case. The cited case was a claim addressing clear and unmistakable error (CUE) regarding the severance of service connection and required a different burden of proof. Further, the Veteran in that case served on the flight line and development found that he worked on planes involved in the Ranch Hand missions working directly on the Hayes Dispensers weapons systems and was exposed to herbicides. Additionally, the Board has considered whether service connection is warranted on a presumptive basis as a chronic disease. 38 C.F.R. §§ 3.303, 3.307, 3.309. The Veteran has prostate cancer and is therefore eligible for presumptive service connection as a malignant tumor. Prostate cancer was not "noted" during service or within one year of separation. See Walker, 708 F.3d 1331. The Veteran's STRs reflect no complaints, finding, or diagnosis with respect to his prostate or associated symptoms. Further at separation from service the Veteran's clinical examination in October 1968 was normal. This normal finding is inconsistent with ongoing manifestations of pathology. Treatment records are absent complaints until 2011, over 40 years after separation from service. As such the Board finds the Veteran's prostate cancer did not manifest within the one-year period after service and service connection is not warranted on a presumptive basis. In addition, in weighing the evidence of record the Board finds the competent and credible evidence of record is against finding continuity of symptomatology. As a result, service connection based on continuity of symptomology is not warranted. Although the Veteran has established a current disability the weight of competent and credible evidence is against finding that the Veteran's prostate cancer is related to his active service, to include as due to herbicide exposure, and as such service connection is not warranted. Since the weight of evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.