Citation Nr: 21042028 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 15-28 605A DATE: July 11, 2021 ORDER Entitlement to service connection for prostate cancer is granted. Entitlement to service connection for type II diabetes mellitus (diabetes) is granted. Entitlement to service connection for coronary artery disease (CAD) is granted. FINDINGS OF FACT 1. The Veteran was exposed to herbicide agents during service. 2. Prior to his demise, the Veteran was diagnosed with prostate cancer, diabetes, and CAD. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for type II diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for CAD have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1970 to February 1974). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board issued a decision on August 1, 2018, that granted service connection for diabetes, prostate cancer, and CAD. A September 2018 Board decision vacated the August 2018 decision after it became aware that the Veteran had died in July 2018. In August 2019, the Board accepted the Veteran's spouse's request for substitution. 38 U.S.C. § 5121A. The Veteran requested a Travel Board hearing in his August 2015 substantive appeal. However, in October 2016 the Veteran, through his attorney, withdrew his request. Therefore, the Veteran's request for a hearing is deemed withdrawn and the Board may proceed with adjudication of the claims. 38 C.F.R. § 20.704 (d). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established on a secondary basis for a disability which is proximately due to a service-connected disability, or to the degree aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2020). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain chronic diseases, including prostate cancer, type II diabetes mellitus, and CAD become manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era also will be presumed to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). 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. Special consideration of herbicide agent exposure is required where the evidence indicates that a veteran's duties placed him or her on or near the perimeters of certain Thai military bases during the Vietnam Era. If a Veteran served as an Air Force security policeman, security patrol dog handler, or member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure may be acknowledged. 1. Entitlement to service connection for prostate cancer 2. Entitlement to service connection for type II diabetes mellitus 3. Entitlement to service connection for CAD Prior to his demise the Veteran asserted that he was exposed to herbicide agents during service while stationed at Nakhon Phanom Royal Thai Air Force Base (RTAFB) and during overnight stays in Vietnam, which led to his disabilities of prostate cancer, diabetes, and CAD. See Veteran's Statement in Support of Claim dated August 17, 2010; Veteran's Affidavit dated January 23, 2016; Representative's arguments dated June 24, 2016 (and photographs and exhibits). The Veteran's service treatment records (STRs) are negative for symptoms or diagnosis of prostate cancer, diabetes, and CAD, which were diagnosed many years after his separation from service, as reflected in his VA treatment records. As the current disabilities at issue are subject to presumptive service connection provisions of 38 C.F.R. §§ 3.307 (a)(6) and 3.309(e), the dispositive issue is whether the Veteran was exposed to herbicide agents during service. The Veteran's service personnel records do not reflect that he was assigned to Vietnam or that his duties took him to Vietnam during service. However, the service records show that he was stationed in Thailand from June 20, 1972 to June 21, 1973, with the location noted as "Classified." Nevertheless, the Veteran's STRs show that he was treated for various acute illnesses from 1972 to 1973 at the 56th Air Force Dispensary at Nakhon Phanom RTAFB. Also, the Veteran's service personnel records reflect that his Thailand service from 1972 to 1973 included flying on airborne missions as a Morse Systems Radio Operator. See TSGT, SGT and SGT Performance Report dated February 25, 1973; see also DD Form 214. Prior to his demise, the Veteran indicated that while he was on the Nakhon Phanom RTAFB flight-line, he was within a half mile of the air base perimeter, and during his leisure time he played football and baseball in a grassy area at the perimeter perhaps twice a week for a period of six to eight months. See Veteran's Affidavit dated January 23, 2016. The Board acknowledges that there is no official evidence reflecting that the Veteran was in close proximity to the perimeter of Nakhon Phanom RTAFB while he was stationed there. Nevertheless, the Veteran's statements as to the location of duties performed by him while stationed in Thailand as well as the location of leisure activities are competent lay evidence of what the Veteran observed during service in Thailand. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Notably, the Board has located no information in the record that calls into question the Veteran's credibility. The Board also points out that the Veteran was stationed at Nakhon Phanom RTAFB for 365 days. It is highly plausible that he went near the air base perimeter. Thus, the Board finds that the weight of the evidence is in equipoise as to whether the Veteran's activities placed him near the perimeter of Nakhon Phanom RTAFB. In light of the Veteran's contentions and after resolving all reasonable doubt in his favor, the Board finds that the Veteran's exposure to herbicides has been established by the facts found in this particular case. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.307. As the evidence supports a finding that the Veteran was exposed herbicide agents in service, the presumptive service connection provisions of the regulation are applicable. See 38 C.F.R. §§ 3.307, 3.309. Service connection for prostate cancer, diabetes, and CAD are therefore warranted through application of the regulations providing presumptive service connection based on exposure to herbicide agents during service. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, 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.