Citation Nr: 21020768 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 19-06 080 DATE: April 8, 2021 ORDER Entitlement to service connection for diabetes mellitus (DM) is granted. REMANDED Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is remanded. FINDING OF FACT 1. The Veteran served in Korea from January 1970 to March 1971. 2. The Veteran submitted credible statements and supporting evidence that he went to or near the Korean DMZ during his service in Korea as a driver/courier. 3. The Veteran’s DM is etiologically related to his herbicide agent exposure in service. CONCLUSION OF LAW The criteria to establish service connection for DM have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to March 1971. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 decision, the Board denied the Veteran’s claims of entitlement to service connection for DM, ED, and SMC based on loss of use of a creative organ. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties and remanded the claims to the Board for further proceedings consistent with the JMPR. The case has returned to the Board for further appellate proceedings. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Further, a Veteran who during active military, naval, or air service served between April 1, 1968 and August 31, 1971, in a unit that operated in or near the Korean DMZ in an area where herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that the Veteran was not exposed to any such agent. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). Under section 3.310(a) of VA regulations, 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). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be 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). Several foundational facts are not in dispute. First, the Veteran has a diagnosis of DM. See June 2015 VA treatment record. DM is a disease associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e). Thus, if the Veteran can establish herbicide agent exposure, he is entitled to service connection for DM under a presumptive basis. Here, service personnel records confirm that the Veteran was in Korea from approximately January 1970 to March 1971. Therefore, and outcome determinative in this case, if the Veteran can establish he served in or near the Korean DMZ during his time in Korea he would be entitled to service connection for his claimed disability. In a January 2021 statement, the Veteran explained that he worked as a driver/courier during his fifteen months of service in Korea. He stated that he was uniquely qualified to do so because he earned his military driver’s license prior to completing basic training, and also was selected to be his training company’s driver while in Oklahoma—which provided military driving experience before he arrived in Korea. See January 2021 Veteran statement. Moreover, he had a secret security clearance, and was also a college graduate. Id. The Veteran explained that his driving duties would take him in or around the Korean DMZ up to three to four times per week. During which he was transporting senior personnel to and from different bases and camps located at or near the Korean DMZ. See January 2021 Veteran statement. The Veteran specifically recalled one trip when he drove a captain to a DMZ camp to oversee a court-martial hearing, citing specifically to the reason for said hearing. Id. The Veteran recounts the speed limit he drove, the conditions of the open-air jeeps, as well as the surrounding environment. Id. In support of these contentions, the record contains the Veteran’s Enlistment Qualification Record which lists a military occupational specialty (MOS) of truck driver, dated June 1970. See DA Form 20. Further, the Veteran received a Safe Drivers Award for driving 8,000 miles or 10 months accident free in Korea. See February 1971 DA Form 2496-1. The Veteran’s DD-214 lists his specialty as “LT TRUCK DR,” or light truck driver. See DD-214. Documentation of the Veteran’s secret clearance is also of record. See October 1969 DA Form 873. A fellow servicemember, L.H., who served with the Veteran submitted a statement corroborating these claims. See February 2017 L.H. statement. L.H. stated that he was also a driver, and that the Veteran was his back up driver while stationed in Korea together. They made frequent trips, usually more than once per week, at or near the Korean DMZ. Id. Based on the physical evidence submitted, along with the Veteran’s credible and detailed statements of regular trips taken to or near the Korean DMZ during his fifteen months in Korea, the Board finds the Veteran was exposed to herbicide agents on active duty. This is consistent with the facts and circumstances of his military occupation listed on his DD-214, as well as supported by various portions of his personnel records, and sufficient to establish herbicide agent exposure at or near the Korean DMZ in this particular case. As the Veteran is entitled to the herbicide agent presumption and has DM, service connection for DM is granted. REASONS FOR REMAND The Veteran generally contends that he suffers from ED as a result of his now service-connected DM. The Board notes that the Veteran is competent to report that he experiences ED, and as ED may be diagnosed by its unique and readily identifiable features, it is capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Thus, the Board finds that the Veteran is competent to diagnose ED. However, the record does not contain the necessary causal link between the Veteran’s DM and his claimed ED. The Veteran did attend diabetic consult classes where he was counseled about DM complications, risks, and symptoms—including ED. See August 2016 VA treatment record. Nonetheless, the Board finds that these treatment notes represent general education and information given to the Veteran in relation to potential risks associated with DM, and not a diagnosis of ED, and not a nexus statement linking ED to the Veteran’s now service-connected DM. Consistent with VA’s duty to assist, VA must provide a medical examination when there is evidence of (1) a current disability; (2) an in-service injury; (3) some indication that the claimed disability may be associated with the established injury; and (4) insufficient competent evidence of record for VA to make a decision. See McClendon v. Nicholson, 20 Vet. App. 79, 84 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires evidence that the claimed disability or symptoms “may be” associated with the established event, has a low evidentiary threshold. See 20 Vet. App. at 83. The Veteran’s DM has been service-connected in the instant decision. As a result, his contention that his ED is secondary to his DM meets the low evidentiary standard required, and a VA examination is necessary to determine if the Veteran’s ED is related or attributable to his time on active duty, to include as secondary to his DM. As the Veteran’s claim for SMC based on loss of use of a creative organ is inextricably intertwined with his claim for service-connection for ED, a remand of this claim is required as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his ED that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s ED. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following: (a.) Is it at least as likely as not that the Veteran’s ED was incurred in, or otherwise related to, his time on active service, to include conceded herbicide exposure therein? (b.) Is it at least as likely as not that the Veteran’s ED was caused or aggravated by his service-connected DM? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.