Citation Nr: 21077626 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-15 890 DATE: December 30, 2021 ORDER Entitlement to service connection for inflatable prosthesis, as secondary to prostate cancer and erectile dysfunction, is denied. REMANDED Entitlement to service connection for diabetes mellitus Type II, to include as due to herbicide agent exposure, is remanded. FINDING OF FACT Service connection is not in effect for prostate cancer or erectile dysfunction. CONCLUSION OF LAW The criteria for service connection for inflatable prosthesis, as secondary to prostate cancer and erectile dysfunction, have not been met. 38 U.S.C.§§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2015 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In August 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Preliminary Matters As phrased on the title page herein, the Board has recharacterized the issue of entitlement to service connection for "new surgery stent pump" to "inflatable prosthesis, as secondary to prostate cancer and erectile dysfunction," which is consistent with the evidence of record, including the Veteran's August 2021 Board testimony, and corrects the AOJ's characterization, which appears to result from its misconstruing the claimed disability as a heart disorder. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim). Additionally, the Board has recharacterized the issue of entitlement to service connection for diabetes mellitus to include consideration of the claim as due to the Veteran's alleged exposure to herbicide agents during service. Id. The Board notes that the Veteran filed the service connection claim for diabetes mellitus in February 2013, and the AOJ denied the claim in a November 2013 rating decision. Although the Veteran timely requested reconsideration of the decision, the RO denied the claim in November 2015 on the basis that the Veteran had not submitted new and material evidence to reopen the claim, although it also considered the claim on the merits. See Rating Decision dated November 20, 2015. As the Veteran timely requested reconsideration of the November 2013 rating decision, the claim need not have been reopened through a showing of new and material evidence. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Consequently, the commencement of the period on appeal for the claim of service connection is February 2013, the date VA received the Veteran's claim for service connection for diabetes. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt must be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran contends that his inflatable prosthesis is necessitated by erectile dysfunction secondary to prostate cancer. See Board Hearing transcript dated August 25, 2021 at pgs. 4-5. VA treatment records show erectile dysfunction related to the Veteran's prostate cancer treatments. See, e.g., VA Primary Care Physician and Nursing notes November 5, 2012 and May 28, 2015. Additionally, treatment records show surgical implantation of the inflatable prosthesis in August 2013 to treat erectile dysfunction. See, e.g., VA surgery notes dated August 13, 2015. However, the Veteran's claims for entitlement to service connection for prostate cancer and erectile dysfunction were previously adjudicated by the Board and denied in a May 2018 decision. The Board's decision on those claims is final. 38 C.F.R. § 20.1100. As such, the Board finds that under the law, the Veteran lacks legal grounds to establish entitlement to service connection for inflatable prosthesis as secondary to prostate cancer and erectile dysfunction. See Sabonis v. Brown, 6 Vet. App. 426 (1994). In Sabonis, the United States Court of Appeals for Veterans Claims held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Here, insofar as service connection is not in effect for the disabilities claimed by the Veteran to have proximally resulted in the surgical implantation of the inflatable prosthesis, service connection on a secondary basis is not applicable under the law. As there is no legal entitlement, the claim of entitlement to service connection for inflatable prosthesis as secondary to prostate cancer and erectile dysfunction is without legal merit. Id. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Diabetes Mellitus The Veteran asserts that his diabetes mellitus Type II is related to his alleged in-service exposure to herbicide agents while deployed to Korea. The Veteran's service treatment records are negative for diagnosis and treatment of diabetes, yet they reflect weight gain and dizzy spells, which can be symptoms associated with diabetes. Under the low threshold for evidence to indicate that a claimed disability may be associated with service, this is sufficiently suggestive of a nexus to trigger the need for a VA examination and opinion in support of this claim. See McLendon, 20 Vet. App. at 83. Accordingly, a remand to obtain a VA examination and opinion addressing the likely etiology of the Veteran's diabetes mellitus Type II is warranted. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Regarding the Veteran's allegation of in-service exposure to herbicide agents, he contends such exposure occurred working on generators from Vietnam that were sent to Korea where he was deployed from 1974 to 1975. See, e.g., Statement in Support of Claim received September 14, 2015; Regional Office Hearing transcript dated August 14, 2017 at pgs. 2-3; Board Hearing transcript dated August 25, 2021 at pgs. 4-6. Under current regulations, a veteran who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicide agents are known to have been applied during that period, is presumed to have been exposed to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iv). However, as the Veteran's representative has acknowledged, the Veteran's Korea service was from 1974 to July 1975, and therefore the presumptive service connection provisions are not for application. Nevertheless, the Veteran is not precluded from establishing service connection through proof of actual direct causation, i.e., showing that he was in fact exposed to herbicide agents during service and that such exposure caused his prostate cancer and diabetes mellitus. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994); see also 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303(d). Previously, the AOJ concluded that it lacked sufficient information to request verification of herbicide agent exposure from the U.S. Army and Joint Services Records Research Center. See VA Memorandum dated February 23, 2018. The Board recognizes that the Veteran's credibility is undermined by contradicting service records that reflect almost universally poor performance and arguably minimal involvement in generator repair in Korea, disciplinary infractions, and his discharge from service for these reasons. See, e.g., Summary of Proceedings of Discharge Board dated May 21, 1975; Recommendation to Vacate Suspended Discharge dated June 27, 1975. However, on review the Board observes that sufficient information is of record to request verification of the Veteran's asserted herbicide agent exposure. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veterans Benefits Administration Office of Administrative Review, the Department of the Army, and any other appropriate agency to request verification of: (i) the Veteran's alleged in-service exposure to herbicide agents in Korea from 1974-1975; and (ii) whether the Veteran's in-service duties in Korea involved working on generators shipped from Vietnam to the Korea facilities where the Veteran performed his duties. *Provide the aforementioned agencies with the Veteran's service records as allowed by law. All efforts to obtain verification of the above should be in writing and associated with the Veteran's electronic claims file. *After receiving replies from the aforementioned agencies, provide all findings in a detailed memorandum. If there is insufficient information to verify the alleged herbicide agent exposure, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran and his representative of VA's inability to verify the alleged exposure. PROVIDE THIS INFORMATION to the VA examiner. 3. Then, schedule the Veteran for a VA examination as to the etiology of his currently diagnosed diabetes mellitus, Type II. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed diabetes mellitus onset during service, to include the Veteran's alleged exposure to herbicide agents in Korea, manifested within one year after service separation, or is otherwise etiologically related to service. *The Board's reference to the Veteran's asserted exposure to herbicide agents during service should not be construed as a determination of credibility of the Veteran's assertion. (Continued on the next page) 4. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 5. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.