Citation Nr: 22014200 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 20-19 705 DATE: March 11, 2022 ORDER Entitlement to service connection for prostate cancer, to include as due to herbicide exposure is granted. Entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer is granted. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ (claimed as K-award) is granted. FINDINGS OF FACT 1. The Veteran has a current diagnosis of prostate cancer. 2. Resolving reasonable doubt in the Veteran's favor, the Veteran was exposed to herbicide agents during active service in Thailand. 3. The Veteran's prostate cancer is presumed due to exposure to herbicide agents during service. 3. The Veteran's erectile dysfunction is proximately due to or aggravated beyond its natural progression by his newly service-connected prostate cancer. 4. Entitlement to SMC based on loss of use of a creative organ is warranted in light of the Veteran's service-connected erectile dysfunction. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for establishing service connection for prostate cancer as a result of herbicide agent exposure have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for secondary service connection for erectile dysfunction are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for SMC based on loss of use of a creative organ have been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has periods of active service in the United States Air Force from September 1970 to April 1974 and from July 1993 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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. Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2010); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand, a practice that was intended to eliminate vegetation and ground cover for base security purposes. A primary source for that information was the declassified Vietnam era Department of Defense document titled Project CHECO Southeast Asia Report: Base Defense in Thailand. Although the Department of Defense indicated that the herbicide used was commercial in nature rather than tactical, VA has determined that there was some evidence that herbicide agents of a tactical nature, or of a greater strength commercial variant, were used. Accordingly, VA has determined that special consideration should be given to veterans whose duties placed them on or near the perimeters of Thailand military bases. Consideration of herbicide exposure on a facts found or direct basis should be extended to those veterans. A veteran who, during active service, served in the Republic of Vietnam during the Vietnam war, between January 9, 1962, to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Exposure to herbicide agents may also be established on a factual basis for veterans whose duties placed them on or near the perimeters of Thailand military bases. VA has identified several bases in Thailand, including U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, that qualify for that consideration. Therefore, herbicide agent exposure should be acknowledged on a facts found or direct basis if a United States Air Force 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 military occupational specialty, performance evaluations, or other credible evidence, during the Vietnam era, from February 28, 1961, to May 7, 1975. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). 1. Entitlement to service connection for prostate cancer, to include as due to herbicide exposure The Veteran has asserted that that he is entitled to presumptive service connection for prostate cancer based on his in-service exposure to herbicides in Thailand. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for prostate cancer. The Veteran contends that his prostate cancer was caused by his in-service exposure to herbicide agents while he was stationed at Ubon Royal Thai Air Force Base in Ubon, Thailand, from March 1971 to March 1972. The Veteran does not assert that he served in the Republic of Vietnam and the evidence of record does not document service in Vietnam. Therefore, he is not presumed to have been exposed to herbicide agents in Vietnam. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). The Veteran has been diagnosed with prostate cancer. Medical records confirm a current diagnosis of prostate cancer, first diagnosed in 2009. See May 2017 VA examination report; February 2020 statement of the case (SOC) (noting that the record shows diagnosis and treatment for prostate cancer); December 2021 motion to advance on the docket. Regarding in-service herbicide exposure, the Veteran's service personnel records are incomplete. See September 2017 correspondence. However, the service treatment records confirm that the Veteran served at the Ubon Royal Thai Air Force Base in Ubon, Thailand during the period in question. See, e.g., December 1971 service treatment record. The Ubon Royal Thai Air Force Base is one of the bases in Thailand that is associated with herbicide agent exposure. The Veteran's service separation form documents that the Veteran served as a general purpose vehicle repairman. The Veteran was not a security policeman, a security patrol dog handler, or a member of a security police squadron. Thus, the Veteran must establish that he otherwise served near the air base perimeter, as shown by occupational specialty, performance evaluations, or other credible evidence, in order for the Board to find that the Veteran was exposed to herbicide agents while stationed in Thailand. The Veteran specifically contends that his barracks while stationed at Ubon Royal Thai Air Force Base in Ubon, Thailand, were located close to the fence perimeter where herbicide agents were used to control vegetation. The Veteran also contends that he often worked near the perimeter as a vehicle mechanic and that his duties caused him to work on or near the perimeter of the base. The Veteran submitted an affidavit stating that the vehicle maintenance building was located right next to the flight line, approximately 50 yards away. He spent at least six days a week, ten hours a day working in this building. His sleeping quarters were located about 100 yards from the perimeter and did not have any windows. He described his sleeping quarters as comparable to a hen house and open to the elements. He remembers waking up to people spraying something outside of his barracks, just along the perimeter. His walk from his sleeping quarters to the maintenance building took him very close to the perimeter. He also regularly jogged along the perimeter of the base, approximately 2-3 times per week. He took part in augmentee guard duty at least three times and was stationed along the base perimeter. The Veteran recalls that the majority of the vegetation on base was dead and brown, especially along the perimeter area. See September 2018 affidavit. In addition to his statements, in furtherance of his claim, the Veteran has submitted pictures of Ubon Air Force Base. See April 2020 photographs. In this instance, the Board finds the Veteran's lay statements to be competent, credible, and persuasive. The Veteran's description of his work while at the Ubon Royal Thai Air Force Base is consistent with his occupational specialty and the evidence of record. There is no contrary evidence to disprove the Veteran's contentions nor is there any basis to question the Veteran's credibility regarding his statements. After a thorough review of the record, to include all lay evidence submitted by the Veteran and the Veteran's military records, the Board resolves reasonable doubt in the Veteran's favor and finds that he was exposed to herbicide agents while stationed at Ubon Royal Thai Air Force Base when his work duties placed him on or near the perimeter of the base. His military occupational specialty, as well as his credible statements, establishes that his duties were such that required him to be near the base perimeter to fulfill his obligations as a vehicle repairman. Thus, based on these specific facts, the Veteran is found to have been exposed to herbicide agents while stationed in Thailand near the air base perimeter. Accordingly, the Board finds that the Veteran was likely exposed to herbicides while stationed in Thailand. Accordingly, service connection for prostate cancer is warranted on a presumptive basis. Thus, resolving all reasonable doubt in the Veteran's favor, service connection for prostate cancer relating to herbicide agent exposure is granted. 2. Entitlement to service connection for erectile dysfunction, claimed as secondary to prostate cancer The Veteran has a current diagnosis of erectile dysfunction and the May 2017 VA examiner opined that his erectile dysfunction has been aggravated by his prostate cancer. The examiner explained that his erectile dysfunction was initially responsive to medication but after recurrence of prostate cancer and treatment with cryotherapy, the Veteran is unable to obtain an erection at all with medications or injections. See May 2017 VA examination report. See also February 2020 SOC (erectile dysfunction is a residual of his prostate cancer). The Board has now determined that service connection for prostate cancer is warranted. The Veteran is competent to report that he has continued to experience the symptoms of the previously diagnosed erectile dysfunction during the pendency of this claim. Because the erectile dysfunction is shown to be medically caused by the now-service-connected prostate cancer, service connection is warranted for the erectile dysfunction. (Continued on Next Page) 3. Entitlement to special monthly compensation based on loss of use of a creative organ (claimed as K-award) SMC is warranted if a veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k). Entitlement to SMC based on loss of use of a creative organ can also be granted based on erectile dysfunction. 38 C.F.R. § 3.350. As the Board herein granted service connection for erectile dysfunction, the Veteran is entitled to SMC for loss of use of a creative organ. 38 U.S.C. § 1114(k). TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.