Citation Nr: 1517997 Decision Date: 04/27/15 Archive Date: 05/05/15 DOCKET NO. 13-14 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for prostate carcinoma, status post radical prostatectomy, to include as due to Agent Orange (herbicide) exposure. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 3. Entitlement to service connection for erectile dysfunction, claimed as secondary to residuals of prostatectomy. 4. Entitlement to service connection for a heart disorder, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1969, to include service in Korea from September 1967 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. The Board notes that in addition to the Veteran's paper claims file, there are paperless, electronic files associated with his claim (Virtual VA and Veterans Benefits Management System (VBMS)). A review of his Virtual VA file reveals a copy of the hearing transcript from the February 2014 Board hearing. The remainder of the documents in Virtual VA and VBMS are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of service connection for a heart disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if any action, on his part, is required. FINDINGS OF FACT 1. The evidence of record regarding the Veteran's exposure to herbicides in or near the demilitarized zone (DMZ) in Korea is consistent with his service and is found to be credible. 2. The Veteran has been diagnosed with prostate cancer and diabetes mellitus, type II, which are disabilities subject to presumptive service connection as a result of exposure to herbicides. 3. The Veteran's residuals of prostate cancer surgery include daytime voiding and nighttime awakening. 4. The Veteran's treatment for diabetes includes medication and a restricted diet. 5. The Veteran's erectile dysfunction is at least as likely as not a result of his prostate cancer surgery. CONCLUSIONS OF LAW 1. Service connection for prostate carcinoma, status post radical prostatectomy as due to herbicide exposure is warranted. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2014). 2. Service connection for diabetes mellitus, type II as due to herbicide exposure is warranted. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2014). 3. Service connection for erectile dysfunction, as secondary to status post prostatectomy is warranted. 38 U.S.C.A. § 1110, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). In this case, the benefits sought on appeal are granted in full. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Service Connection on Direct and Presumptive Bases Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (or nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition to direct service connection, a Veteran may prevail under alternative theories of service connection including on a presumptive basis for a showing of chronic disease or due to herbicide (Agent Orange) exposure, or on a secondary basis. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a qualifying condition is noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In certain cases, service connection can be presumed if a veteran was exposed to an herbicide agent, to include Agent Orange, during active service. Under the current Code of Federal Regulations (C.F.R.), presumptive service connection is warranted for several disorders, including prostate cancer and diabetes mellitus, type 2, if manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Agent Orange is presumed when a Veteran served in Vietnam anytime between January 9, 1962 and May 7, 1975 or in certain units that served in or near Korean demilitarized zone (DMZ) anytime between April 1, 1968 and August 31, 1971. See 38 C.F.R. § 3.307. The Veteran's service treatment records do not show any complaints of a prostate disorder or diabetes mellitus and he does not claim to have incurred such disorders while on active duty. Rather, he contends that his active duty included service around the DMZ in Korea, exposing him to Agent Orange herbicides and entitling him to service connection for prostate cancer, and its residuals; and diabetes mellitus, on a presumptive basis. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6) and 3.309(e). The crucial question here is whether the Veteran had service at or around the DMZ in Korea to trigger the presumption of exposure to Agent Orange. The Veteran concedes he was not stationed around the DMZ. He does report, however, that on several occasions in the summer of 1968 as a military policeman, he was sent to units that were at or around the DMZ. Indeed, he reported that he was assigned to a small unit on the outskirts of Inchon. He indicated that the Depot received and sent out supplies to the Post Exchange to include the P.X. and at Camp Casey in the DMZ. The Veteran indicated that his duties included receiving all types of supplies and securing them. He stated that he would oversee the loading of the supplies into delivery trucks and then escort and secure supplies as they were being delivered to the Post Exchange to include the DMZ area. See October 2012 notice of disagreement statement; and pages 10-11; 15-16 of the hearing transcript. The Veteran's DD-214 and service personnel records reflect he served in the United States Army as a military policeman, assistant squad leader. His personnel records document service in Korea from September 1967 to October 1968. The Veteran's statements, as well as his testimony are consistent with his MOS as a military policeman and the circumstances of his service. Thus, the Board accepts the credibility of the lay evidence in this case, and his presence in close proximity to the DMZ is conceded. Because of his presence around the DMZ in Korea, the Veteran is entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116(f). Prostate cancer and diabetes mellitus type II may be presumptively service connected under 38 C.F.R. § 3.309(e) if such manifests to a degree of 10 percent or more at any time after service. See 38 C.F.R. § 3.307(a)(6)(ii). Relevant to prostate cancer, the July 2011 VA genitourinary examination showed a diagnosis of prostate cancer, and while the condition was described as being in remission, the examiner noted residual symptoms of voiding dysfunction with increased urinary frequency. Indeed, the Veteran reported daytime voiding interval between 1 and 2 hours; and nighttime awakening to void 3 times. Such symptoms support a compensable rating. See 38 C.F.R. § 4.115(b), Code 7528. Relevant to diabetes, such disability, is assigned a compensable evaluation even if manageable by restricted diet only. See 38 C.F.R. § 4.119, Code 7913. The July 2011 VA examination report documents diabetes mellitus, type II, and that the Veteran controls his diabetes with oral medication and restricted diet. The evidence of record supports a compensable rating. Accordingly, the Board finds service connection is warranted for prostate cancer and residuals, and diabetes mellitus, type II. Erectile dysfunction- secondary service connection The Veteran maintains that his erectile dysfunction results from his now service-connected prostate cancer and subsequent surgery. Service connection may also be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2014). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2). At the outset, the Board notes that whether or not the Veteran can maintain an erection is something capable of lay observation. See Jandreau v. Nicholson, 492 F 3d. 1372, 1377 (Fed. Cir. 2007). Nevertheless, the July 2011 VA examination report documents erectile dysfunction. As noted, the Board has granted service connection for prostate cancer and subsequent surgery based on presumption of herbicide exposure. The remaining question is whether or not the erectile dysfunction is caused or aggravated by prostatectomy due to prostate cancer. The July 2011 VA examination report documents that the Veteran's erectile dysfunction is at least as likely as not attributable to the radical prostatectomy performed for prostate cancer. Accordingly, all the requirements for establishing secondary service connection are met, and service connection for erectile dysfunction as secondary to prostate cancer and subsequent surgery is warranted. ORDER Service connection for prostate carcinoma, status post radical prostatectomy, due to herbicide exposure is granted. Service connection for diabetes mellitus, type II, due to herbicide exposure is granted. Service connection for erectile dysfunction, claimed as secondary to residuals of prostatectomy is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he has a heart disorder, namely, ischemic heart disease that is due to his in-service herbicide exposure. In his May 2011 statement, the Veteran indicated that he believes that his disability developed due to his Agent Orange exposure. The Board has found the Veteran's report of his exposure to Agent Orange credible. The Veteran underwent a VA examination in July 2011, at which time the VA examiner noted that the Veteran did not have ischemic heart disease, however a diagnosis of paroxysmal supraventricular tachycardia was made. While the Veteran has been found to have been exposed to Agent Orange while in service, unlike ischemic heart disease (for which there is no current diagnosis) paroxysmal supraventricular tachycardia is not one of the listed diseases for which service connection may be presumed due to an association with exposure to herbicide agents pursuant to 38 C.F.R. § 3.309(e). Thus, the criteria for presumptive service connection for paroxysmal supraventricular tachycardia on the basis of herbicide exposure have not been established. The Board notes, however, in addition to the presumptive regulation, a Veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. Ap. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The July 2011 VA examiner did not offer an etiology for the Veteran's heart disorder. Moreover, the examiner did not consider the Veteran's contentions regarding Agent Orange exposure. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A remand is necessary in order to obtain an addendum opinion that addresses the Veteran's contention that Agent Orange exposure caused his current heart disorder and consider all the evidence of record. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any unassociated VA treatment records relevant for the Veteran's heart disorder, including from October 2011 to the present, and associate those records with the claims file. 2. The Veteran should be given an opportunity to identify any non-VA healthcare provider that treated him for his claimed heart disorder. If the Veteran provides the appropriate authorizations to obtain any records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After the above medical records have been associated with the claims file, the AOJ should arrange for the July 2011 VA examiner to provide an addendum opinion. If that VA examiner is not available, the AOJ should arrange for another appropriate VA examiner to provide an addendum opinion. The claims folder and a copy of this Remand should be made available to and be reviewed by the examiner. If the VA examiner determines that an additional examination is necessary, that examination should be performed prior to the examiner's opinion formation. All indicated studies should be performed, and all findings should be reported in detail. The examiner should include a complete discussion of the medical principals used in forming his/her opinion. a) Does the Veteran currently have a heart disorder? List all diagnosed heart disorders. b) If the Veteran currently has a heart disorder, is it at least as likely as not (50% probability or greater) that it began in or was caused by the Veteran's service? The VA examiner should specifically consider the Veteran's contention that his heart disorder is due to his conceded Agent Orange exposure in Korea. Provide such an opinion for each diagnosed heart disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete explanation must be given for all opinions and conclusions expressed. The examiner is directed to reconcile his or her opinions with any on file that may conflict. 4. When the development requested has been completed, the case should again be reviewed by the AOJ on the basis of all additional evidence. If the benefit sought is not granted, the AOJ should furnish the Veteran and his representative a supplemental statement of the case and a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs