Citation Nr: 21005404 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 17-45 075 DATE: February 1, 2021 ORDER Service connection for prostate cancer is granted. Service connection for erectile dysfunction as secondary to the now service-connected prostate cancer is granted. REMANDED Entitlement to service connection for a brain tumor is remanded. Entitlement to service connection for loss of smell is remanded. Entitlement to service connection for loss of taste is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran served in or near the Korean demilitarization zone (DMZ) between May 1970 and March 1971. 2. The Veteran has been diagnosed with prostate cancer with resulting erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for prostate cancer on a presumptive basis due to herbicide agent exposure are met. 38 U.S.C. §§ 1110, 1112, 1116B, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2020). 2. The criteria for entitlement to service connection for erectile dysfunction secondary to prostate cancer are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the October 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied the claims for service connection for prostate cancer and brain tumor as secondary to herbicide agent exposure, as well as for erectile dysfunction, loss of smell, and loss of taste. The Veteran timely appealed that decision to the U.S. Court of Veterans Appeal, resulting in a Joint Motion for Remand (JMR) by the parties. An August 2020 Court Order vacated the August 2019 Board decision ad remanded the matter for compliance with the instructions in the JMR. Prostate Cancer and Erectile Dysfunction Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). However, certain diseases specified in 38 U.S.C. § 1116 (a)(2), and additional diseases the Secretary determines warrant a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, listed in 38 C.F.R. § 3.309 (e), are considered to have been incurred in or aggravated in the line of duty in the active military, naval, or air service, notwithstanding that there is no record of evidence of such disease during the period of such service. See 38 U.S.C. § 1116B (a)(1). This presumption applies to any veteran who, during active military, naval, or air service, served in or near the Korean Demilitarized Zone (DMZ), during the period beginning on September 1, 1967, and ending on August 31, 1971. See 38 U.S.C. § 1116B (a)(2). Medical records, including private treatment records, indicate that the Veteran has been diagnosed with prostate cancer. Accordingly, the first element necessary to establish service connection has been demonstrated. Prostate cancer is a disease associated with herbicide agent exposure under 38 C.F.R. § 3.309 (e) and may therefore be considered incurred during service if the Veteran served in or near the DMZ between September 1, 1967, and August 31, 1971. Therefore, the remaining question is whether the Veteran was exposed to herbicide agents during service, entitling him to presumptive service connection for prostate cancer under 38 U.S.C. § 1116B. Service records show that the Veteran served in Korea between May 1970 and March 1971 (during the presumptive period) in the 728th Military Police battalion. The Agency of Original Jurisdiction (AOJ) found that the Veteran had not provided sufficient information for the U.S. Army and Joint Services Records Research Center (JSRRC) to verify exposure to herbicide agents. Specifically, the Veteran was noted to have primarily asserted that he was exposed to herbicide agents from trucks returning from the DMZ. While the Veteran’s appeal was pending, Congress enacted, and the President signed into law, the Blue Water Navy Vietnam Veterans Act of 2019. The new law codified VA’s regulation related to veterans who served in Korea in a new section of the U.S. Code 38 U.S.C. § 1116B, though with modifications. Notably, it contains no reference to units designated by DOD; it simply refers to veterans who “served in or near” the DMZ. Compare 38 C.F.R. § 3.307 (a)(6)(iv), with Pub. L. No. 116-23, § 3(a), 133 Stat. 966, 969 (2019). The Veteran in this case asserts that his prostate cancer is due to exposure to herbicides while stationed in Korea. The Veteran has indicated that he was exposed to herbicide agents from trucks carrying supplies returning from the Korean DMZ. In his notice of disagreement, the Veteran also stated that he was military police while stationed in Korea and indicated that he was constantly “back and forth” from the DMZ to Seoul, Korea, in connection with his duties on the supply line. See Veteran’s Notice of Disagreement and substantive appeal; see also July 2020 JMR. Although there is no specific personnel record that contains a specific notation of presence in or near the DMZ, no such documentation is required in these circumstances. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere). The evidence of record, to include the Veteran’s military personnel records and statements, is at least evenly balanced as to whether the Veteran served in or near the DMZ between May 1970 and March 1971. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran served in or near the Korean DMZ between May 1970 and March 1971. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to any point within a claim as well as its ultimate disposition). As the Veteran is presumed exposed to herbicide agents and has been diagnosed with prostate cancer, entitlement to service connection for prostate cancer is warranted. Private medical records addressing the Veteran’s prostate cancer residuals further indicate complaints of erectile dysfunction. See e. g., January 2006 private treatment note; see also September 2005 note (indicating that following a prostatectomy , the Veteran had not any erectile functioning). As such, the Board finds that the Veteran’s erectile dysfunction is secondary to his prostate cancer, status-post prostatectomy. See 38 C.F.R. § 3.310 (service connection may be granted for a disability that is proximately due to or the result of a service-connected disability). REASONS FOR REMAND The Veteran also asserts that his brain tumor is due to exposure to herbicide agents while stationed in Korea near the DMZ, and in turn, that he has a loss of taste and smell as result. Although a benign brain tumor is not one of the enumerated diseases presumed due to exposure to herbicides, the Veteran may still establish service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As noted above, the Board has found that the Veteran served in or near the Korean DMZ between May 1970 and March 1971. As such, the Veteran should be afforded a VA examination and medical opinion to assist in determining whether his diagnosed brain tumor and resulting loss of smell and taste are related to service, to include his exposure to herbicide agents. The matters are REMANDED for the following actions: 1. Obtain VA treatment records, if any, and associate them with the claims file. 2. Schedule the Veteran for an appropriate VA examination regarding the etiology of a brain tumor. The VA examiner is requested to review all pertinent records associated with the record and conduct all necessary testing. The examiner should then address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s brain tumor (diagnosed as meningioma of the brain) was incurred in service or is otherwise related to service, to include conceded exposure to herbicide agents. (b.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s loss of smell and taste is either caused or aggravated by the Veteran’s brain tumor. (c.) A rationale should be provided for all opinions rendered. 3. Then, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.