Citation Nr: 22013045 Decision Date: 03/08/22 Archive Date: 03/08/22 DOCKET NO. 20-20 236 DATE: March 8, 2022 ORDER Entitlement to service connection for prostate cancer due to presumed herbicide agent exposure is granted. FINDING OF FACT The Veteran was exposed to herbicide agents in Thailand and has prostate cancer. CONCLUSION OF LAW The criteria for service connection for prostate cancer have been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to January 1970. This matter came to the Board of Veterans Appeals (Board) on appeal from a July 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for a prostate cancer. The Veteran disagreed with the RO's determination, and a statement of the case (SOC) was issued in March 2020 addressing the matter. The Veteran timely appealed. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in the active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established on a presumptive basis for if a veteran was exposed to an herbicide agent, such as Agent Orange, during service. See 38 U.S.C. §§ 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Although veterans who served in the Republic of Vietnam are presumed to have been exposed to herbicide agents, the Veteran served in Thailand. In addition to exposure within the Republic of Vietnam, exposure to Agent Orange and other herbicide agents has been noted to have occurred in various places outside of the Republic of Vietnam, including Thailand: "VA Compensation Service has acknowledged that there is '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.'" Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (quoting COMP. & PENSION SERV. BULL. (U.S. Dep't of Veterans Affairs, Washington, D.C.), May 2010, at 3). Specifically, VA has determined that U.S. Air Force Veterans who served on Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961, and May 7, 1975, may have been exposed to herbicides. To warrant a finding of herbicide agent exposure at one of the above listed air bases, a veteran must have served as an Air Force security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by military occupational specialty, performance evaluation, or other credible evidence. If any of these criteria are met, exposure to herbicide agents is to be conceded on a direct/facts-found basis. In the case of veterans who served at a U.S. Army base in Thailand during the Vietnam era, herbicide agent exposure may be conceded on a direct/facts-found basis for veterans who served as a member of the military police unit, or with a military police occupational specialty. A veteran who was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with exposure to herbicide agents includes CAD. Id. Prostate Cancer In this case, the evidence of record indicates a prostate cancer diagnosis. Specifically, a November 2017 private Disability Benefits Questionnaire (DBQ) shows a diagnosis of prostate cancer. Consequently, the first element of service connection has been met. With respect to the question of service incurrence, the evidence does not indicate, nor does the Veteran contend that he was exposed to herbicide agents while serving in Vietnam. Specifically, he asserts that he was exposed to Agent Orange while serving in Udorn Airbase in Thailand. In this case, VA has attempted to confirm whether the Veteran has qualifying Vietnam era service as contemplated by VA laws in regulations. A June 2018 Formal Finding indicated a lack of information required to verify Agent Orange exposure in Thailand. The information required to verify Agent Orange exposure was insufficient to send to Joint Services Records Research Center (JSRRC). Also noted was that the Veteran served at Udorn Airbase in Thailand, but there was no evidence of service near the base perimeter while stationed in Thailand. The Veteran's DD Form 214 shows his military occupation specialty (MOS) was administrative specialist. His personnel records reflect that he served at Udorn from December 1967 through December 1968. In support of his claim, the Veteran's attorney submitted the Veteran's affidavit, pictures of Udorn AFB, and several articles and government documents regarding VA acknowledging use of herbicides on the fenced perimeters of military bases in Thailand. In his May 2020 affidavit, the Veteran asserted exposure to herbicides while stationed at Udorn. He reported that he performed administrative work, including helping with the base newspaper and getting stories around the base. The Veteran further reported that his office was about 200-250 feet from the front perimeter fence. Periodically, he would go from Udorn to Bangkok to help them put the newspaper out to other based, and they would fly directly out on the planes on the base to Bangkok. The Veteran stated that his barracks were "hootches" that ran adjacent to the runway of the base. These hootches were open-air with screens on the side of the structure, instead of standard walls. He further stated that these hootches stood about 200-300 feet from the perimeter fence. The Veteran indicated that around his barracks the vegetation was purposely being kill off and was dead and brown. The Veteran further indicated that they were never asked to mow the lawn around the barracks, but instead were asked to spray defoliant around the area to keep it maintained. The Veteran noted the sprayers were kept on the little porch area around the barracks, and he personally sprayed around his barracks with a device that looked like an old fire extinguisher, approximately three to four times over the course of his time at Udorn. The Veteran noted that as a non-commissioned officer, they were required to serve on guard duty periodically overnight, while stationed at Udorn. He further noted that he performed this duty once or twice a month sitting in an open-air jeep at the perimeter of the base with a 50-caliber machine gun and an M16 rifle. The Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). In addition, the Board must consider historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016). There is no affirmative evidence to explicitly contradict the Veteran's reports of being at the perimeter of the base and the Veteran's reports are generally consistent with the information contained in his service records. The statements of the Veteran are competent, credible, and consistent with the places, types, and circumstances of his service. See 38 U.S.C. § § 1154 (a); 38 C.F.R. § 3.303 (a). Exposure to herbicide agents is therefore conceded on a direct/facts-found basis. As the Veteran currently has prostate cancer and was exposed to herbicide agents in Thailand, service connection for prostate is warranted on a presumptive basis. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Walker, 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.