Citation Nr: 18160541
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-63 284
DATE:	December 27, 2018
ORDER
Entitlement to service connection for prostate cancer, to include as due to herbicide exposure, is granted.
FINDING OF FACT
The Veteran’s prostate cancer is attributable to his service in Thailand, where he was exposed to herbicides.

CONCLUSION OF LAW
The criteria for entitlement to service connection for prostate cancer, to include as due to herbicide exposure, have been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active duty service from March 1966 to October 1969.  

Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). 
Service incurrence for certain diseases, including prostate cancer, respiratory cancers, and soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange).  38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e).  Such a presumption, however, requires evidence of actual or presumed exposure to herbicides. Id. 
To be entitled to a presumption of service connection based on in-service herbicide exposure, a veteran must have set foot on the landmass of Vietnam or served on its inland waters between January 9, 1962, and May 7, 1975.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).  VA has extended this presumption to veterans who served in other areas where Agent Orange is known to have been used.  Id. 
Herbicide exposure may be established on a direct/facts-found basis if the Veteran served with the U.S. Air Force in Thailand during the Vietnam Era at one of the Royal Thai Air Force Bases (RTAFBs) at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang, and as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
The Veteran is seeking service connection for prostate cancer contending that his prostate cancer was caused by his exposure to herbicides, specifically Agent Orange, while in service.  As a preliminary matter, a December 2015 clinical record shows that the Veteran was diagnosed with prostate cancer.  The record also shows that the Veteran subsequently underwent a robotic prostatectomy in December 2016.  Thus, a current disability is present.
Military personnel records show that the Veteran had service at U-Tapao Royal Thai Air Force Base (RTAFB) from August 1968 to August 1969.  The record further shows that the Veteran’s MOS was that of a pavement maintenance specialist which included maintaining pavements, drainage systems, sidewalks and grounds, and supervising Thai workers.  
After reviewing and weighing the evidence in the record, the Board resolves reasonable doubt in favor of the Veteran, and finds that the Veteran was exposed to herbicides during his service in Thailand.  Accordingly, he should be entitled to the presumption of service connection under 38 C.F.R. § 3.309 (e). 
In so finding, the Board initially notes that while the RO attempted to verify the Veteran’s herbicide exposure with the JSRRC, a request was never made.  In an April 2016 memorandum, the JSRRC Coordinator found that information required to corroborate the Veteran’s herbicide exposure in Thailand was insufficient, and that the Veteran’s MOS of pavement specialist is not independently sufficient to concede herbicide exposure based on the daily duties he would have performed.  
Despite the coordinator’s findings, the Board notes that the finding was found on inaccurate facts as the coordinator based his determination on the Veteran having served at the Don Muang Royal Air Force Base, while records show that the Veteran served at the U-Tapao AFB.  Given this finding, the Board does not find the evidence probative.  
Alternatively, the Board notes that the Veteran has competently and credibly reported that his MOS duties entailed working near the perimeter of the base.  Specifically, in a July 2018 Correspondence and in an April 2018 psychiatric evaluation, the Veteran reported that they built bunkers around the perimeter and interior of the base to be ready to go on alert in case they were attacked.  The Board notes the Veteran is competent to report the occurrence of an observable event and finds him credible in this regard as there in nothing in the record to suggest otherwise.
Given the above, the Board resolves reasonable doubt in favor of the Veteran and finds that the Veteran was exposed to herbicides during his service in Thailand.  While there is a rebuttable presumption that the Veteran’s prostate cancer was caused by his exposure to herbicides, there is no evidence of record which supports a conclusion that the Veteran’s prostate cancer was not due to service.  See 38 C.F.R. § 3.309.  As there is no affirmative evidence to the contrary, and the Board has conceded that the Veteran was exposed to herbicides in Thailand during the Vietnam era, then entitlement to service connection for prostate cancer is warranted under 38 C.F.R. § 3.309.

 
ROBERT C. SCHARNBERGER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Laffitte, Associate Counsel 

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