Citation Nr: 21006722 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-99 820A DATE: February 5, 2021 ORDER 1. Entitlement to service connection for erectile dysfunction as secondary to a service-connected disability is granted. 2. Entitlement to service connection for a brain tumor, to include as being due to herbicides agent exposure, is denied. REMANDED 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus (DM) is remanded. FINDINGS OF FACT 1. After affording the Veteran the benefit of the doubt, the Veteran's ED was aggravated by his service-connected DM and ischemic heart disease medications. 2. The preponderance of the evidence is against a finding that a brain tumor began during active service, manifested within one year of service discharge, or is otherwise related to service including herbicides agent exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction as secondary to a service-connected disability have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 2. The criteria for service connection for a brain tumor as due to herbicides agent exposure have not been met. 38 U.S.C. §§ 1103, 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.300, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to July 1969. In December 2020, the Veteran and his wife testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for ED as secondary to a service-connected disability. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran contends his ED is caused or aggravated by his service-connected disabilities. He contends that he first developed ED while undergoing chemotherapy for Hodgkin’s Lymphoma and that he subsequently suffered a complete cessation of sexual performance when he began taking medications for DM. The Veteran has stated that he is unable to take ED medications due to an adverse interaction with medications for his ischemic heart disease. The Board has carefully reviewed the evidence of record and finds that the evidence supports the grant of service connection for ED based on a finding that it is aggravated by the service-connected DM and/or the medication he takes for DM. The reasons follow. Regarding the first element of secondary service connection, the record shows that the Veteran was diagnosed with ED. For example, a November 2013 VA examination report documents the Veteran was diagnosed with ED in 1996 and still has it. Thus, the first element of a secondary service connection claim is met. Regarding the second element of secondary service connection, the record shows the Veteran is service-connected for DM and ischemic heart disease. Thus, the second element of a secondary service connection claim is met. Regarding a nexus between ED and a service-connected disability, the November 2013 VA examiner provided a negative nexus opinion. The examiner opined that ED was not attributable to DM or the residuals of treatment for DM because ED predated DM diagnosis by several years. However, this medical opinion’s only rationale is that ED predated DM. The Board finds this medical opinion is inadequate because it does not consider aggravation of ED by DM or the medication taken for DM. Service connection for Hodgkin’s Lymphoma was denied in a January 1999 rating decision and not appealed. Thus, the Veteran is not service connected for that disability, and that disability cannot be considered in connection with the claim for secondary service connection. The Board finds the Veteran competent and credible to report his experiences with ED as well as the effect various medications had on his ED. The Veteran has not contested that he had ED prior to the diagnosis of DM, but has stated that he now has complete cessation of sexual performance after the diagnosis of DM. Given this evidence, and after affording the Veteran the benefit of the doubt, the Board finds that his ED was aggravated by his service-connected DM or the medication taken for DM. Accordingly, after affording the Veteran the benefit of the doubt, the Board concludes the evidence shows that service connection for ED is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a brain tumor, to include as being due to herbicides agent exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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. 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). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as a tumor of the brain, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Veteran contends his brain tumor was caused by Agent Orange exposure in Vietnam. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for service connection for a brain tumor. The reasons follow. As to evidence of a current disability, an April 2009 private treatment record shows that the Veteran was diagnosed with a left temporal brain tumor. Therefore, the facts establish that the first element of a service-connection claim is met. As to evidence of an in-service disease or injury, the Veteran served in Vietnam, and thus herbicides agent exposure has been conceded. Thus, the facts establish that the second element of a service-connection claim is met. As to evidence of a nexus between the current disability and service, the Board finds that the preponderance of the evidence is against a nexus. For example, the June 1969 Report of Medical Examination from service discharge shows that except for the tonsils being enucleated and a scar on the right forearm, clinical evaluations of all bodily systems were normal. On the June 1969 discharge Report of Medical History, the Veteran marked “no” for a history of ever experiencing frequent trouble sleeping, loss of memory/amnesia, periods of unconsciousness, and epilepsy or fits. He marked “yes” for a history of a tumor, growth, cyst, or cancer, but this condition was attributed to the removal of a sebaceous cyst on his forearm in childhood with no complications and no sequelae. During the December 2020 hearing, the Veteran’s representative testified that an article from Maryland about Agent Orange would show a connection between Agent Orange and two parts of the brain, presumably including the part of the brain where the Veteran had a tumor. However, nothing has been uploaded by the Veteran or his representative since the hearing. The Veteran testified that doctors could not definitively say Agent Orange caused his brain tumor. The Board notes a brain tumor is not one of the chronic diseases available for presumptive service connection under 38 C.F.R. § 3.309(e) based on herbicide agent exposure. Following service discharge, the first evidence of brain tumor was documented in 2009. The Veteran had stated that he began exhibiting symptoms around 2007 or 2008. The Veteran’s wife testified at the December 2020 hearing that she noticed strange behavior from the Veteran in 2006 or possibly as early as 2005. Both the Veteran and his wife described these symptoms as responding to questions inappropriately, lying, and wandering off. Thus, these symptoms began decades after the Veteran’s service discharge. There is no competent evidence that the Veteran developed a brain tumor within one year of service discharge; therefore, presumptive service connection for a chronic disease is not warranted. Additionally, at the present time, there is no competent evidence of a nexus between the brain tumor diagnosed in 2009 and the Veteran’s service, to include herbicide agent exposure. While the Veteran and his wife have alleged their belief that the brain tumor is related to herbicide agent exposure, they are not competent to offer opinions as to the etiology of brain tumor, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. A brain tumor requires specialized training for determinations as to diagnosis and causation, and is, therefore, not susceptible to lay opinions on etiology. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran’s and his wife’s opinions are nonprobative evidence. VA did not provide the Veteran with an examination or opinion in connection with the claim for service connection for a brain tumor. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the evidence does not show an indication that the disability or persistent or recurrent symptoms of a brain tumor may be associated with service. The first symptoms of a brain tumor occurred approximately 36 years after service, and doctors have not attributed the brain tumor to service, including herbicides agent exposure. For a VA examination to be warranted, all the McLendon criteria have to be met, and at least one element is not met. Therefore, entitlement to a VA examination and/or medical opinion is not warranted in connection with the claim for service connection for a brain tumor. For all the reasons described above, the Board finds the preponderance of the evidence is against the Veteran's claim for service connection for a brain tumor as due to herbicide agent exposure. There is no reasonable doubt to be resolved, and the claim for service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus (DM) is remanded. The Veteran’s testified in December 2020 that his DM has worsened since his June 2017 VA examination, to include his belief that he had developed peripheral neuropathy in his upper and lower extremities. The Board finds that remand is warranted to fully assist the Veteran with the development of his claim for an increased rating for DM. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records from August 2019 to the present and associate them with the claims file. 2. When it is safe to do so and the Veteran feels comfortable attending an in-person examination, schedule the Veteran for a VA examination to evaluate the severity of the service-connected DM, to include ensuring that the examiner evaluates the existence of peripheral neuropathy involving the upper and lower extremities. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. McDaniels, 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.