Citation Nr: 18148311 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 14-38 027 DATE: November 7, 2018 ORDER Entitlement to service connection for Type II diabetes mellitus, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for prostate cancer, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for erectile dysfunction, to include as secondary to Type II diabetes mellitus, is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran had in service exposure to herbicide agents such as Agent Orange. 2. The preponderance of the evidence is against finding that Type II diabetes mellitus began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that prostate cancer began during active service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that erectile dysfunction is proximately due to or aggravated beyond its natural progression by a service-connected disability, or is otherwise etiologically related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for service connection for Type II diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1116, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), (b), 3.307, 3.309(a), (e) (2018). 2. The criteria for service connection for prostate cancer are not met. 38 U.S.C. §§ 1110, 1116, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), (b), 3.307, 3.309(a), (e) (2018). 3. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1952 to August 1956, and from June 1958 to May 1975, when he retired after 20 years of active service. In January 2016, the Board remanded the Veteran’s appeal to the Appeals Management Center (AMC) for further development. Pertinent to the issues decided herein, the Board directed the AMC to obtain the Veteran’s service personnel files and associate them with the Veteran’s claims file. The Veteran’s service personnel files are now associated with the Veteran’s claims file. With respect to the three issues decided herein, the Board concludes that the AMC has substantially complied with the January 2016 remand directive, see Stegall v. West, 11 Vet. App. 268 (1998), and the Board may adjudicate the three issues on appeal that are not being remanded to the AMC. Service Connection 1. Entitlement to Service Connection for Prostate Cancer and Type II Diabetes Mellitus a. Presumptive Service Connection due to Exposure to Herbicide Agents Veterans with active service in the Republic of Vietnam between January 1962 and May 1975 are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Applicable regulations provide that those diseases listed in 38 C.F.R. § 3.309(e)—which are associated with exposure to certain herbicide agents—shall be considered to have been incurred in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 57586–89 (1996). The Veteran is seeking entitlement to service connection for Type II diabetes mellitus and prostate cancer, two conditions that VA has determined have a positive association with exposure to herbicide agents, to include Agent Orange. See 38 C.F.R. § 3.309(e); Notice, 59 Fed. Reg. 341–46 (1994); 61 Fed. Reg. 57586–89 (1996). The question for the Board is whether the Veteran has service in the Republic of Vietnam that would entitle him to presumptive service connection due to exposure to herbicide agents. According to a chronological listing of service included in the Veteran’s service personnel records, he was stationed at Clark Air Force Base (AFB) in the Philippines. From January 1967 to June 1968 he was a material facilities specialist and from June 1968 to February 1969 he was an inventory management specialist. The Veteran alleges that during his period of service at Clark AFB he received orders for a 90-day temporary duty assignment (TDY) to Ton Sa Nut AFB in the Republic of Vietnam. In his May 2014 notice of disagreement and October 2014 VA Form 9, Substantive Appeal, and March 2015 statement through his representative, the Veteran stated the TDY was shortened to 28 days because he needed to return to Clark AFB to undergo a hemorrhoidectomy in August 1967 or at some point in 1968. VA has been unable to substantiate the Veteran’s claim that he served in the Republic of Vietnam. In February 2017 correspondence, VA determined that it could not corroborate the Veteran’s service in the Republic of Vietnam. A PIES 034 request was negative for any in country service in the Republic of Vietnam. The Board notes the Veteran’s efforts to locate his TDY orders, to include a May 2015 request to his congressional representative; however, his personnel records do not include TDY orders to the Republic of Vietnam. Moreover, a detailed review of the Veteran’s service personnel records does not indicate that the Veteran served in the Republic of Vietnam while stationed at Clark AFB. The Veteran was not awarded the Vietnam Campaign Medal according to the Form DD 214, Certificate of Release or Discharge from Active Duty, for the period from June 1966 to June 1970 encompassing the Veteran’s period of service at Clark AFB. His service personnel records include his performance evaluations for the periods from August 1966 to August 1967 and from August 1967 to July 1968. Neither of the two evaluations discuss or mention a TDY to Ton Sa Nut AFB. Service treatment records do not note that Veteran returned to Clark AFB from Ton Sa Nut AFB to undergo a hemorrhoidectomy, and the Veteran did not mention a 28-day TDY to the Republic of Vietnam in a February 1992 statement noting a hemorrhoidectomy at Clark AFB. The Board reiterates that the preponderance of the evidence weighs against findings that the Veteran had service in the Republic of Vietnam during a 28-day TDY to Ton Sa Nut AFB. The Veteran did not have service in Vietnam. He is, therefore, not presumed to have been exposed to herbicide agents, to include Agent Orange, and is not entitled to presumptive service connection due to exposure thereto. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). b. Presumptive Service Connection for Chronic Conditions Service connection may be granted on a presumptive basis for certain chronic diseases if the disability manifested to a compensable degree within the applicable presumptive period following a veteran’s separation from active service. 38 U.S.C. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For Type II diabetes mellitus and prostate cancer (malignant tumors), the presumptive period is one year. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran was diagnosed with and treated for prostate cancer in 2001. He is shown to have been diagnosed with Type II diabetes mellitus in 2003. Given the 2001 and 2003 diagnoses, there is no contention that Type II diabetes mellitus or prostate cancer manifested to a compensable degree within the one-year presumptive period following the Veteran’s separation from active service in June 1975. The diagnoses also post-date the Veteran’s separation from active service by more than 25 years. Accordingly, presumptive service connection for a chronic condition pursuant to 38 C.F.R. § 3.303(b) is not warranted for Type II diabetes mellitus or prostate cancer. Service connection may also be granted on a direct basis, but the preponderance of the evidence is against finding that the Veteran’s Type II diabetes mellitus and prostate cancer are etiologically related to an injury, event, or disease during active service. See 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran does not contend that he incurred Type II diabetes mellitus or prostate cancer during active service. His service treatment records are negative for any related findings – his laboratory work at discharge was not positive for diabetes and a digital rectal examination was within normal limits. Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. Service connection for Type II diabetes mellitus and prostate cancer is therefore denied. 2. Entitlement to Secondary Service Connection for Erectile Dysfunction The Veteran erectile dysfunction is proximately due to or aggravated beyond its natural progression by Type II diabetes mellitus. Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 447–48 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998); Allen, 7 Vet. App. at. 448. There is sufficient evidence establishing that the Veteran experiences erectile dysfunction. However, to the extent that he relates his erectile dysfunction to his diabetes mellitus and/or prostate cancer, the claim for service connection for those disabilities has been denied above. As such, there is no avenue for entitlement to service connection for the claims on a secondary basis. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Service connection may also be granted on a direct basis, but the preponderance of the evidence is against finding that the Veteran’s erectile dysfunction began in service or is etiologically related to an injury, event, or disease during active service. See 38 C.F.R. § 3.303(a), (d); Holton, 557 F.3d at 1366. The Veteran first complained of erectile dysfunction around 1998, more than 20 years after his separation from active service in 1975. He does not contend otherwise. REASONS FOR REMAND Entitlement to Service Connection for Hypertension Is Remanded The Veteran’s claim for entitlement to service connection for hypertension was remanded in January 2016. The Board requested that the Veteran receive a VA examination to determine the etiology of the Veteran’s hypertension. The Board noted that the Veteran had received a VA examination for hypertension in 1996; however, the examination report did not include an opinion regarding whether hypertension had its onset in service. Reference was made to service treatment records documenting elevated blood pressure readings. The remand directive specifically stipulated that the examiner provide an opinion that addressed this evidence. A VA examination was conducted in July 2017. The examiner determined that the Veteran’s hypertension did not have its initial onset in service because his service treatment records do not show hypertension. There was no discussion of the aforementioned to elevated blood pressure readings that were recorded in service. There was also no discussion of the Veteran’s February 1992 report that he was first diagnosed with hypertension while serving at Holloman AFB in New Mexico. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). A remand is necessary to provide a VA examiner with the opportunity to comply with the remand directive and provide an opinion on the etiology of the Veteran’s hypertension that includes a discussion of the in-service high blood pressure measurements. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether it is as likely as not that the Veteran’s hypertension had its initial onset in service or is otherwise etiologically related to his active service. In providing the requested opinion, the examiner should address all blood pressure recorded during the Veteran’s active service and state whether they represent the initial onset of hypertension. The Veteran’s 1992 report of being diagnosed as having hypertension should be discussed as well. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel