Citation Nr: 21065675 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-35 966 DATE: October 27, 2021 ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus type II, is denied. REMANDED Entitlement to service connection for acute myeloid leukemia (AML), to include as a result of exposure to Agent Orange, is remanded. FINDING OF FACT The probative medical evidence of record does not show that the Veteran's erectile dysfunction was the result of military service, to include any relationship to service-connected diabetes mellitus type II or any other service-connected disability. CONCLUSION OF LAW The criteria to establish service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1969 to February 1972, to include service in Vietnam. The Veteran died in November 2014 while he still had the above referenced claims pending adjudication. In March 2015, the RO granted the Veteran's widow, hereinafter the appellant, entitlement to consideration via accrued benefits. However, as noted in a January 2020 Remand, the Board found that the appellant also had claimed entitlement to benefits via substitution, which provides for a more liberal review of the record. As such, upon remand, the RO reconsidered the appellant's claim for substitution, and this was granted in May 2020. Accordingly, the discussion that follows shall afford the appellant review of the full record in accordance with the liberalized standard accorded to substitution claimants. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (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 or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appellant asserts that the Veteran's erectile dysfunction was the result of his service-connected diabetes mellitus type II. A review of the Veteran's service treatment records does not reveal any discussion of erectile dysfunction. A review of the Veteran's post-service outpatient treatment records shows that the Veteran had been treated for diabetes mellitus type II since August 2002. The Veteran was first seen for complaints of erectile dysfunction in December 2009. He was diagnosed with erectile dysfunction of an organic nature and prescribed testosterone injections. In March 2013, the Veteran's treatment provider indicated that etiology of erectile dysfunction was related to chronic opiate use. A VA examination opinion was provided in March 2015. The examiner opined that the Veteran's erectile dysfunction was less likely than not caused by the Veteran's service-connected diabetes mellitus type II. In support, it was provided that, based upon the Veteran's presentation in medical history and records of his history, the erectile dysfunction was most likely a result of and consistent with chronic opiate use. There were no other opinions of record associating the Veteran's erectile dysfunction with diabetes mellitus type II. The Board concludes that, while the record demonstrates the presence of erectile dysfunction, it did not develop until many years after military service and continuity of symptomatology is not established. The record does not otherwise establish a relationship between erectile dysfunction and service. In regard to secondary service connection, while the record demonstrates the presence of erectile dysfunction and a service-connected disability (diabetes mellitus type II) upon which to base a relationship, a nexus has not been demonstrated. The only probative evidence on this relationship, provided via the outpatient treatment records and VA examination, show that the erectile dysfunction was due to chronic opiate use and not diabetes mellitus type II. The only other evidence indicating a positive nexus were the statements of the Veteran and the appellant. The Board notes that the Veteran was competent to testify as to a condition within his knowledge and personal observation. Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, it is clear, based on a detailed review of the statements overall, that neither the Veteran nor the appellant had actual specialized knowledge of medicine in general and that they were merely speculating as to whether his erectile dysfunction was the result of military service. In this regard, they were not competent to render such opinion, as it requires specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the statements to the effect that the erectile dysfunction was the result of military service are lacking in probative value. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service or service-connected disability. While the record demonstrates a diagnosis of erectile dysfunction, it does not contain reliable evidence which relates this claimed disability to any incident of service, to include diabetes mellitus type II. For these reasons, the Board concludes that the claim of entitlement to service connection for erectile dysfunction must be denied, as the preponderance of the evidence is against the claim. The doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The appellant has alleged that the Veteran's AML had a relationship to Agent Orange exposure in service, which has been previously conceded. The Board notes that the Veteran's AML would not be considered for presumptive service connection due to Agent Orange exposure under 38 C.F.R. §§ 3.307 and 3.309, because such disabilities are not explicitly listed for consideration. Such was confirmed by a VA examination opinion in May 2014 in which it was opined that AML is in a separate and distinct category from the types of leukemia contemplated by the rating schedule for presumptive consideration, i.e. chronic lymphocytic leukemia (CLL) or hairy cell leukemia (HCL). Therefore, the RO denied consideration based upon presumptive service connection. However, the inquiry does not end there. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran who does not meet the requirements of 38 C.F.R. § 3.309 is not precluded from establishing service connection by way of proof of actual direct causation. Combee v. Brown, 34 F.2d 1039, 1041-42 (Fed. Cir. 1994). The Veteran has a current disability and in-service herbicide exposure. A nexus opinion regarding the two in light of no prior opinion previously being provided on this matter is indicated. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to an appropriate clinician to address the nature and etiology of the Veteran's AML. After reviewing the file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that this Veteran's AML was caused by or related to active duty service, including the Veteran's conceded exposure to herbicide agents. While AML is not presumed as due to herbicide agent exposure for purposes of establishing service connection; since the herbicide agents to which the Veteran is presumed to have been exposed are known to cause various disabilities, the requested opinion should address whether in this particular Veteran's case, it is reasonable to link his AML with his known herbicide agent exposure. The rationale for any opinions should be provided. 2. Thereafter, readjudicate the appeal. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.