Citation Nr: 21070351 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-28 869A DATE: November 23, 2021 ORDER Entitlement to service connection for diabetes mellitus type II is granted. Entitlement to service connection for prostate cancer is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction, including as secondary to diabetes mellitus type II, prostate cancer, and/or hypertension is remanded. FINDINGS OF FACT 1. The Veteran served in the territorial waters of the Republic of Vietnam and has a current diagnosis of diabetes mellitus type II. 2. The Veteran has been diagnosed with prostate cancer. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes as due to exposure to Agent Orange during active military service in Vietnam are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2020). 2. The criteria for service connection for prostate cancer as due to exposure to Agent Orange during active military service in Vietnam are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to June 1963 and from November 1965 to September 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Entitlement to service connection for diabetes mellitus type II and prostate cancer The Veteran contends that his diabetes mellitus type II and prostate cancer were caused by herbicide exposure during his active-duty service on the USS TOPEKA. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). Type II diabetes mellitus and prostate cancer are listed among the diseases presumed to be associated with herbicides agent exposure (such as to Agent Orange), and the Veteran is currently diagnosed with type II diabetes mellitus (hereinafter diabetes mellitus) and prostate cancer, which the record reflects has manifested to a compensable degree. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). See Medical Treatment Record Non-Government Facility, March 2, 2012, p6 (the Veteran's diabetes is diet-controlled). The Veteran's private treatment records show that in March 2010 he had a prostatectomy due to adenocarcinoma of the prostate. See Medical Treatment Record Non-Government Facility, March 7, 2011, p30. As the Veteran does not contend that his diabetes mellitus or prostate cancer developed during or soon after service, the disposition of this appeal turns on whether his currently diagnosed diabetes mellitus and prostate cancer may be linked to in-service exposure to herbicide agents during his service during the Vietnam era. If so, service connection may be granted on the basis that his diagnosed diabetes mellitus and prostate cancer, which have both manifested to a compensable degree, may be presumed to be the result of that in-service herbicide agent exposure, pursuant to 38 C.F.R. §§ 3.307 and 3.309. Turning to the evidence, the Veteran served on the USS TOPEKA from January 1966 to January 1968. See Military Personnel Record, July 19, 2016, p88. The Defense Personnel Records Information Retrieval System (DPRIS) reported that the USS TOPEKA anchored in Da Nang Harbor in the Republic of Vietnam on April 19, 1966. See DPRIS Response, June 12, 2017. As the Veteran was stationed aboard the USS TOPEKA at the time that it anchored in Da Nang Harbor, the Veteran was in the territorial waters of the Republic of Vietnam between January 9, 1962 and May 7, 1975. As a result, it is presumed that he was exposed to herbicide agents. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), codified in 38 U.S.C. § 1116A. VA conceded that the Veteran had qualifying service in Vietnam on August 30, 2021. The evidence demonstrates that the Veteran has been diagnosed with diabetes mellitus type II at least since February 28, 2011. See Medical Treatment Record Non-Governmental Facility, October 14, 2011, p4. He has been diagnosed with prostate cancer at least since March 2010. See Medical Treatment Record Non-Government Facility, March 7, 2011, p30. Considering it has been conceded that the Veteran had qualifying service in Vietnam and was therefore presumably exposed to Agent Orange, and considering diabetes and prostate cancer are both presumed related to Agent Orange exposure, service connection for these disabilities is warranted on a presumptive basis. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran's private treatment records demonstrate that he has a current diagnosis of hypertension at least since 2011, and VA has conceded that the Veteran was exposed to herbicide agents during service in the territorial waters of the Republic of Vietnam. VA regulations do not provide hypertension as a presumptive disability associated with herbicide agent exposure. However, the National Academy of Sciences in a recent Veterans and Agent Orange Update has upgraded hypertension to the "sufficient" category from the "limited or suggestive" category, indicating that "there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and an herbicide agent. See Nat'l Acad. of Sci., Inst. of Med., VETERANS AND AGENT ORANGE: UPDATE 11 (2018). As such, there is an indication of an association between hypertension and herbicide agent exposure, and a VA opinion regarding this theory of entitlement should be obtained. 2. Entitlement to service connection for erectile dysfunction, including as secondary to diabetes mellitus type II, prostate cancer, and/or hypertension is remanded. The Veteran has reported erectile dysfunction since at least June 2001. He has contended that it is secondary to his diabetes mellitus, type II, his hypertension, and/or his prostate cancer. The Veteran provided a positive medical opinion indicating that his erectile dysfunction was caused by the prostate cancer. See Medical Treatment Record Non-Government Facility, August 26, 2021. As noted above, this medical opinion provided no rationale or explanation for its conclusion and the absence of a rationale renders the medical opinion inadequate for VA purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinion.) The matters are REMANDED for the following actions: 1. Obtain a medical opinion from an appropriate VA examiner. The examiner must review the claims file. If it is believed that an examination of the Veteran is necessary, schedule the examination(s) prior to rendering the opinion. The examiner is asked to provide a response to the following: (a.) Is the hypertension at least as likely as not related to service? (b.) Is it at least as likely as not that the hypertension (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? (c.) Is the hypertension at least as likely as not related to in-service exposure to Agent Orange? The examiner is advised that a negative opinion cannot be based solely on the fact that the hypertension is not on the list of diseases that are presumptively associated with exposure to herbicide agents. 2. Schedule the Veteran for a VA examination for his erectile dysfunction. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Is the erectile dysfunction at least as likely as not caused by the Veteran's diabetes mellitus, type II, or prostate cancer? (Continued on the next page) (b.) Is the erectile dysfunction at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's diabetes mellitus, type II, or prostate cancer? A rationale should accompany any opinions expressed. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.