Citation Nr: 21027080 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-16 835 DATE: May 4, 2021 REMANDED Entitlement to service connection for erectile dysfunction, to include as due to exposure to toxic herbicide agents, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1972 to January 1975, with confirmed service in the Republic of Vietnam during the Vietnam War era. This matter was affected by the Blue Water Navy Vietnam Veterans Act of 2019. Adjudication was stayed until January 1, 2020. The stay of adjudication has been lifted, and the Board will proceed with deciding this claim. Of note, the stay also impacted adjudication of the Veteran's claims of service connection for chloracne, multiple myeloma, soft-tissue sarcoma, and Parkinson's disease. However, as erectile dysfunction is not a condition subject to presumptive service connection pursuant to 38 C.F.R. § 3.307(a)(6), it has been separated from those four issues and is subject to this distinct Board decision. VA regulations provide that for Veterans who served in Vietnam during a certain time period, selected diseases may be presumed to have resulted from exposure to herbicide agents such as Agent Orange. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Erectile dysfunction is not listed as one of the conditions that warrants presumptive service-connection as attributable to herbicide exposure. As such, despite the fact that exposure to toxic herbicide agents was conceded in a March 2020 memorandum, the Agency of Original Jurisdiction (AOJ) continued the denial of the claim of service connection for erectile dysfunction in the subsequent October 2020 supplemental statement of the case. The Board notes, however, notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes a disability, which is not included in the list in 38 C.F.R. § 3.309(e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). The Veteran has a confirmed diagnosis of erectile dysfunction and has asserted that his exposure to toxic herbicides caused or contributed to his development of erectile dysfunction. To date, the Veteran has never been afforded a VA examination to evaluate the nature and likely etiology of his diagnosed erectile dysfunction, to include any consideration of whether the condition is attributable to his exposure to toxic herbicides in service. As such, remand is necessary in order to afford the Veteran such an examination with an etiology opinion from a qualified VA clinician. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with a qualified examiner in order to determine the nature and likely etiology of the diagnosed erectile dysfunction. The claims file, to include a copy of this remand, must be made available to the chosen examiner, who must indicate that they reviewed the file prior to preparing any examination report. Any and all studies, tests, and evaluation deemed necessary by the examiner should be performed. The examiner is asked to opine as to whether it as at least as likely as not (a 50 percent probability or greater) that erectile dysfunction was incurred in or is otherwise attributable to active military service. In setting forth this opinion, the examiner must specifically address the Veteran's contention that his erectile dysfunction is attributable to his conceded exposure to toxic herbicide agents while in service in the offshore waters of the Republic of Vietnam during the Vietnam War era. The examiner is reminded that the lack of presumptive entitlement to service connection for erectile dysfunction is not a bar to a finding that there is nevertheless a nexus between toxic herbicide exposure and the development of erectile dysfunction. A complete rationale is required for any and all opinions. The lay contentions of the Veteran must be considered. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. To the extent that telehealth technology permits an alternative to an in-person examination, such opportunity is fully acceptable in lieu of an in-person examination. T. V. CASEY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.