Citation Nr: 20009963 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-14 179 DATE: February 6, 2020 ORDER Entitlement to service connection for ischemic heart disease, to include as a result of exposure to an herbicide agent, is granted. Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to an herbicide agent, is granted. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, is granted. FINDINGS OF FACT 1. The Veteran served in South Korea during the Vietnam Era and, resolving all doubt in his favor, his duties, as likely as not, brought him sufficiently close to the demilitarized zone within the period of herbicide agent application. 2. The Veteran served in South Korea during the Vietnam Era and, resolving all doubt in his favor, his duties, as likely as not, brought him sufficiently close to the demilitarized zone within the period of herbicide agent application. 3. The objective medical evidence shows erectile dysfunction is proximately due to, the result of or made worse beyond its natural progression by service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for ischemic heart disease, to include as a result of exposure to an herbicide agent, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to an herbicide agent, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from November 1967 to November 1970. In May 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. On July 1, 2019, the Secretary of Veterans Affairs directed the Board of Veterans’ Appeals (Board) to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. The Act creates new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. The issues now on appeal were stayed as being affected by the Act. As of January 1, 2020, the stay is now lifted and adjudication of the issues on appeal is resumed. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). Establishing service connection generally requires: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to, the result of or made worse beyond its natural progression a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Exposure to an Herbicide Agent A veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during his or her service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.§ 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The following diseases will be deemed service connected if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin’s disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin’s lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease. 38 C.F.R. § 3.309 (e). Ischemic heart disease includes, but is not limited to, acute, subacute and old infarction; atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina. It encompasses any atherosclerotic heart disease resulting in clinically significant ischemia or requiring coronary revascularization but does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e). To benefit from the presumption of service connection for diseases associated with herbicide-agent exposure, the Veteran must have one of the diseases set forth in 38 C.F.R. § 3.309 (e). However, when diseases do not appear under the regulation, a veteran can still proceed to establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994). Additionally, under 38 C.F.R. § 1116B (a) of the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), effective January 1, 2020, the presumption of herbicide exposure remains applicable to veterans having served in Korea, in or near the Korean Demilitarized Zone (DMZ), during a period of exposure now extended to the period beginning on September 1, 1967 and ending on August 31, 1971, notwithstanding there is no record of evidence of disease during the period of such service. See also 38 C.F.R. § 3.307. 1. Entitlement to service connection for ischemic heart disease, to include as a result of exposure to an herbicide agent. The service treatment records (STRs) show in the November 1967 enlistment examination and the October 1970 separation examination, except for “body marks, scars, tattoos” on the separation examination, all body-system and body-segment categories, including the heart, chest and vascular system, were checked off as normal. Additionally, the Veteran denied any past or current disorder related to or suggesting heart disease, such as shortness of breath, pain or pressure in the chest, palpitation or pounding heart, high blood pressure, or leg cramps. A brief summary of the post-service treatment record shows the Veteran’s has a history of myocardial infarction. In March 2003, treatment providers found moderate left-ventricular dysfunction. After admission in June 2008 to a private hospital for chest pain, the Veteran underwent an angiogram. Final diagnoses in the hospital discharge summary included acute myocardial infarction and coronary artery disease. December 2011 private treatment notes show that, after an assessment which included chest pain and noted a 2001 coronary artery bypass grafting and 2008 coronary artery disease with stents, the Veteran was treated for unstable angina and severe triple vessel coronary artery disease. Left-heart catheterization, coronary and graft angiography were performed, as well as an ascending aortography. Further coronary artery bypass surgery was recommended. In the period of June 2011 through January 2016, the Veteran was treated at VA and was prescribed medications. The Veteran’s Military Personnel Record confirms his transfer to “USARPAC” (United States Army Pacific Command), which included the Korean Theater of Operations, in the period of April 1968 through June 1969, as a member of the 2nd Infantry Division, a component of the United States 8th Army. His DD Form 214 shows he was awarded the Armed Forces Expeditionary Medal (Korea). Additionally, a court-martial record following upon an investigation of a motor vehicle accident in which the Veteran was involved by the United States Army Criminal Investigative Division further establishes the Veteran’s presence on the Korean peninsula. Personnel records further indicate the Veteran was assigned to Company B of the 2nd Supply and Transport Battalion. The Veteran has given detailed testimony at the May 2019 Board hearing, specifically explaining that his duties as a truck driver in his unit were to move Korean nationals and members of the United States 7th Army, also stationed in South Korea, to and from the DMZ, as well as removing from that area wood debris after terrain had been cleared. He further testified he made approximately 24 trips in the period of April throughout December 1968 (personnel records indicate June as his starting date), after which he was removed from truck-driving duties. Although the February 2016 Statement of the Case (SOC) noted that the Veteran’s unit was not among the documented “qualifying units” for the purposes of establishing exposure to an herbicide agent at the Korean DMZ, the Board notes the Veteran’s testimony does not assert that his unit was barracked at the DMZ, but that he was tasked with driving to and from the DMZ. The Board further notes relevant records likely would not reflect that. In short, it is entirely plausible that a supply and transport unit, so designated for moving materiel and personnel, would be barracked at a distance, possibly of many miles and likely near or at a railroad terminus or a coastal port facility in order to accept shipments of things and persons to be transported by truck. The Veteran has implied as much in his testimony in describing trips up to the zone and back to wherever his unit was posted. From the foregoing, the Board concedes exposure to an herbicide agent, as the Veteran’s duties place him at or near the DMZ in the period designated by regulation of between April 1968 (possibly June 1968) and August 1971 and, as the record amply provides treatment records with post-service diagnoses of acute infarction and coronary artery disease, the Board, in resolving all doubt in the Veteran’s favor, finds the Veteran’s duties, as likely as not, brought him sufficiently close to the DMZ within the period of herbicide agent application; therefore, ischemic heart disease is considered presumptively service-connected as a result of exposure to an herbicide agent during active service. 2. Entitlement to service connection for diabetes mellitus, type II, to include as a result of exposure to an herbicide agent. As already stated above, the STRs show in the November 1967 enlistment examination and the October 1970 separation examination, all relevant body-system and body-segment categories, including endocrine system, were checked off as normal. Additionally, the Veteran denied any past or current disorder related to or suggesting diabetes, such as, for example, frequent urination. In private treatment notes in June 2008 and December 2010, the Veteran received hospital discharge diagnoses of diabetes. In the period of May 2011 through January 2016, the Veteran was treated for diabetes at VA and was prescribed medications. For the same reasons set forth in the preceding section, the Board concedes exposure to an herbicide agent and, as the record sufficiently provides treatment records with post-service diagnoses diabetes, the Board, in resolving all doubt in the Veteran’s favor, finds the Veteran’s duties, as likely as not, brought him sufficiently close to the demilitarized zone within the period of herbicide agent application; therefore, diabetes mellitus, type II, is considered presumptively service-connected as a result of exposure to an herbicide agent during active service. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus, type II. The STRs show in the November 1967 enlistment examination and the October 1970 separation examination, all relevant body-system and body-segment categories, including genitourinary system, were checked off as normal. Additionally, the Veteran denied any past or current disorder related to or suggesting erectile dysfunction. The post-service treatment record shows July 2012 VA examination for male reproductive system conditions, which stated a 2008 diagnosis of erectile dysfunction. For an opinion on service connection, the July 2012 VA examiner referred to his examination remarks, as follows: This vet[’]s complaint of ED [erectile dysfunction] is secondary to his diabetes and coronary heart disease and has no relationship to the gonorrhea he acquired while in the military. As indicated in the previous section, the Veteran’s diabetes mellitus, type II, will now be service-connected. As such and based on the objective medical evidence,   the Board finds erectile dysfunction is proximately due to, the result of or made worse beyond its natural progression by service-connected diabetes mellitus, type II. Consequently, service connection on a secondary basis has been established. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, Associate Counsel 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.