Citation Nr: 1804006 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-11 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II (DM), claimed as due to exposure to an herbicide agent. 2. Entitlement to service connection for erectile dysfunction (ED), secondary to DM. 3. Entitlement to service connection for diabetic neuropathy of the right lower extremity, secondary to DM. 4. Entitlement to service connection for diabetic neuropathy of the left lower extremity, secondary to DM. 5. Entitlement to service connection for prostate cancer, claimed as due to exposure to an herbicide agent. 6. Entitlement to service connection for coronary artery disease (CAD), claimed as due to exposure to an herbicide agent. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1972, including service in the Republic of Korea from September 1990 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Jurisdiction over the Veteran's claim was subsequently transferred to the RO in Seattle, Washington. In April 2017, the Veteran appeared with his representative for a videoconference hearing before the undersigned. A transcript of that proceeding has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the record reflects that further development is necessary prior to appellate consideration. Specifically, further development is necessary to determine the applicability of 38 C.F.R. § 3.307(a)(6)(iv)- service in or near the Korean DMZ as claimed by the Veteran. A veteran who served between April 1, 1968, and August 31, 1971 in a unit that operated in or near the Korean DMZ in an area in which herbicide agents are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent. Id. The availability of presumptive service connection does not, however, preclude a grant of service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); 38 C.F.R. § 3.303 ("The presumptive provisions of the statute and [VA] regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid."). In this case, military personnel records (MPRs) reflect the Veteran was assigned to the United States Army Security Agency (USASA) Operations Company in Kanghwa-Do, Korea. MPRs further reflect the Veteran was designated as a "Safehand Armed Courier for Special Intelligence Information." In a statement dated in June 2013, the Veteran reported that the mission of the USASA was tactical intelligence support to the two U.S. combat divisions-the 2nd Infantry Division and the 7th Infantry Division-stationed along the Korean DMZ. He further indicated direct exposure to herbicide agents, in pertinent part, due to his courier duties. In particular, the Veteran reported transporting, on occasion, classified intelligence information in and along the DMZ, to wit, within the areas in which herbicide agents are known to have been applied. As indicated, the Veteran testified at a hearing in April 2017. At that time, the Veteran reported, in pertinent part, that he was assigned as an electronics technician with the USASA, which included special duties as an intelligence courier. The Veteran reiterated that his duties as a courier would occasionally require him to travel to various locations along the DMZ. In light of the foregoing, the Board finds that the evidence of record raises the possibility the Veteran may have been exposed to herbicide agents in service, and, at the very least, triggers VA's duty to assist. To that extent, the Board finds that a remand is necessary for development consistent with 38 C.F.R. § 3.307(a)(6)(iv), including contacting the Joint Service Records Research Center (JSRRC) to verify whether the Veteran did, in fact, conduct courier operations in and along the Korean DMZ. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake the following development: a. Contact the JSRRC, or other relevant source, to verify whether the USASA Operations Company provided tactical intelligence support to the two U.S. combat divisions-the 2nd Infantry Division and the 7th Infantry Division-stationed along the Korean DMZ, between October 1970 and August 1971 (the period of time records reflect the Veteran was stationed at Kanghwa-Do, Korea). b. Contact the JSRRC, or other relevant source, to verify whether the Veteran conducted courier duties in and along the Korean DMZ as a result of his duties as a Safehand Armed Courier for Special Intelligence Information, and whether he was exposed to herbicide agents as a result thereof. Efforts to obtain these records and/or responses from each contacted entity should be documented in the claims file. 2. If, and only if, the requested development by JSRRC reveals evidence of exposure to an herbicide agent, schedule the Veteran for VA examination(s) by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of any claimed DM and/or associated neurologic abnormalities. The electronic claims file must be made accessible to the examiner for review. Following a review of the claims file and medical history, the VA examiner must offer an opinion as to the following: a. Whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's DM is caused by, or otherwise etiologically related to military service, including exposure to AO. b. If a positive nexus for DM is established, opine whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's ED is proximately due to or aggravated by the Veteran's DM. c. If a positive nexus for DM is established, opine whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's diabetic neuropathy left and/or right lower extremity is proximately due to or aggravated by the Veteran's DM. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. If, and only if, the requested development by JSRRC reveals evidence of exposure to an herbicide agent, schedule the Veteran for VA examination by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of any claimed CAD. The electronic claims file must be made accessible to the examiner for review. Following a review of the claims file and medical history, the VA examiner must offer an opinion as to the following: a. Whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's CAD is caused by, or otherwise etiologically related to military service, including exposure to AO. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. If, and only if, the requested development by JSRRC reveals evidence of exposure to an herbicide agent, schedule the Veteran for VA examination by an appropriate medical professional to prepare an opinion with respect to the nature and etiology of any claimed prostate cancer. The electronic claims file must be made accessible to the examiner for review. Following a review of the claims file and medical history, the VA examiner must offer an opinion as to the following: a. Whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's prostate cancer is caused by, or otherwise etiologically related to military service, including exposure to AO. b. If a positive nexus for prostate cancer is established, opine whether it is as likely as not (i.e., a 50 percent or better probability) that the Veteran's ED is aggravated by the Veteran's radiation therapy, if not otherwise attributed to DM. (Aggravation is defined as a worsening of the underlying condition as compared to an increase in symptoms.) Any opinion rendered should reflect consideration of treatment records dated in March 2011, which reflects worsening ED due to radiation therapy for prostate cancer. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Thereafter, readjudicate the issues remaining on appeal. If the benefits sought on appeal remain denied, issue a supplemental statement of the case and provide the Veteran and his representative with an opportunity to respond. Then return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).