Citation Nr: 21063165 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-48 094 DATE: October 13, 2021 REMANDED Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for erectile dysfunction secondary to prostate cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1968 to November 1970. He was located in Korea from October 26, 1969, to November 25, 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2018 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. 1. Entitlement to service connection for prostate cancer is remanded. The Veteran contends that he was exposed to herbicides during his military service and this exposure caused him to develop prostate cancer. The law provides that certain diseases may be presumed to have been incurred due to exposure to herbicides such as Agent Orange, to include prostate cancer. See 38 C.F.R. § 3.309(e). The law also requires that the Veteran's unit operated in or near the Korean demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971, for the presumption to apply to his claim. See 38 C.F.R. § 3.307(a)(6). Evidence in the record indicates the Veteran served in Korea between October 1969 to November 1970. However, it is not clear if his unit was "in or near" the Korean DMZ. The duty to assist requires that the VA continue to try to obtain records in the possession of a government agency until such a search becomes futile. 38 U.S.C. § 5103A (c)(2). Under 38 C.F.R. § 3.159 (c)(2), the Secretary must make as many record requests as are necessary; a search for records is "futile" only when it becomes clear the record does not exist or is not in the possession of the custodian. A January 2018 inquiry was made to the Defense Personnel Records Information Retrieval System (DPRIS). The result of the inquiry was that the Veteran's unit records were unable to be located for 1970. However, the records were located for 1969 and they showed that the unit did not serve in an area where the use, storage, spraying, or transporting of herbicides occurred. Further attempts were not made to locate the 1970 records. Therefore, remand is required to make another attempt to obtain the 1970 records before adjudication of the claim through this source, and any other appropriate source which may be in possession of the missing documents. 2. Entitlement to service connection for erectile dysfunction is remanded. A decision on this issue could be significantly affected by a decision on the claim for service connection for prostate cancer which is remanded to the RO to obtain records. The issues are therefore inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Contact the DPRIS and any other possible source to inquire about the 1970 records for unit "C" Battery, 1st Battalion, 79th Artillery, 7th Infantry Division. All responses, positive and negative, should be recorded and associated with the claims file. All necessary and follow-up efforts should be made to obtain the records, until it is clear from the responses received that further requests would be futile. If such records are not available or further attempts to locate such records would be futile, the Veteran should be notified in accordance with the procedures set forth in 38 C.F.R. § 3.159 (e) and a Formal Finding of Unavailability should be associated with the record. 2. Thereafter, readjudicate the claims on appeal. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.