Citation Nr: 21040141 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-66 650 DATE: July 2, 2021 REMANDED Entitlement to service connection for diabetes mellitus type II (diabetes), to include as due to Agent Orange (AO) exposure is remanded. Entitlement to service connection for an enlarged prostate, to include as due to Agent Orange (AO) exposure is remanded. Entitlement to service connection for Parkinson's Disease, to include as due to Agent Orange (AO) exposure is remanded. Entitlement to service connection for ischemic heart disease (IHD), to include as due to Agent Orange (AO) exposure is remanded. Entitlement to service connection for a colon disorder, to include as due to Agent Orange (AO) exposure and/or secondary to diabetes is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities (PN BUE), to include as secondary to diabetes is remanded. Entitlement to service connection for sleep apnea, to include as secondary to diabetes is remanded. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to diabetes is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served active duty in the U.S. Army from April 1968 to December 1969. This case comes before the Board on appeal of September 2015 rating decision. In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via live video conference. A transcript of the proceeding has been associated with the record. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). 1. Entitlement to service connection for diabetes mellitus type II (diabetes), to include as due to Agent Orange (AO) exposure is remanded. 2. Entitlement to service connection for an enlarged prostate, to include as due to Agent Orange (AO) exposure is remanded. 3. Entitlement to service connection for Parkinson's Disease, to include as due to Agent Orange (AO) exposure is remanded. 4. Entitlement to service connection for ischemic heart disease (IHD), to include as due to Agent Orange (AO) exposure is remanded. 5. Entitlement to service connection for a colon disorder, to include as due to Agent Orange (AO) exposure and/or secondary to diabetes is remanded. Here, the Veteran contends that he was exposed to Agent Orange/herbicide agents during his active duty service. He testified that he was a rations driver that traveled between multiple camps at or near the Korean demilitarized zone (DMZ). Moreover, the Veteran stated that he could hear the North Korea propaganda due to his proximity to the DMZ. On January 25, 2011, the VA amended its regulations to provide presumptive herbicide exposure for any veteran who served between April 1, 1968 and August 31, 1971 in a unit determined by VA and the Department of Defense (DOD) to have operated in an area in or near the Korean DMZ in which herbicides were applied. See 76 Fed. Reg. 4,245-50 (Jan. 25, 2011). If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicide containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309 (e) will apply. In this matter, the Veteran's in-service personnel records show that the Veteran was stationed at Camp St. Barbara in South Korea from April 1968 to December 1969, as part of the 1st TAB 25th Artillery unit. He testified that he was a rations driver that traveled between multiple camps at or near the Korean demilitarized zone (DMZ) to transport rations and laundry. Moreover, the Veteran's MOS showed that he was a vehicle driver, which supports his contentions. See DD 214. The Board notes that the AOJ sought to verify the Veteran's contentions regarding AO exposure, but ultimately could not verify due to a lack of information. However, there is no evidence on record that the AOJ ascertained whether the Veteran's unit operated in an area in or near the Korean DMZ in which herbicide agents were applied. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected even though there is no record of such disease during service to include Type II diabetes mellitus and subacute peripheral neuropathy. 38 C.F.R. § 3.309 (e). Moreover, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Thus, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, it must be shown that a veteran served in the Republic of Vietnam during the Vietnam era or served in a unit determined by VA and DOD to have operated in an area in or near the Korean DMZ in which herbicide agents were applied between April 1, 1968 and August 31, 1971. 38 C.F.R. § 3.307 (a)(6). Second, a veteran must have been diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309 (e), or a nexus between the currently diagnosed disability and service must otherwise be established. See Brock, 10 Vet. App. at 162. Therefore, on remand, VA should verify whether the Veteran's duties were among those identified as having served in Korea in or around the DMZ during the applicable time period. Should it be confirmed that the Veteran operated in an area in or near the Korean DMZ in which herbicides were applied, any additional development deemed necessary for adjudication purposes, such as VA examinations for an etiological opinion, should be performed. 6. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities (PN BUE), to include as secondary to diabetes is remanded. 7. Entitlement to service connection for sleep apnea, to include as secondary to diabetes is remanded. 8. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to diabetes is remanded. 9. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Here, the claims seeking service connection for PN BUE, sleep apnea, ED, and TDIU are inextricably intertwined with the claim of service connection for diabetes and other issues listed above, which are being remanded for further evidentiary development. Therefore, a final decision on these issues cannot be rendered now. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Furthermore, the Veteran reported that he receives SSI payments. The record does not contain documentation of attempts to obtain the SSA documents, which would assist in determining whether the Veteran is eligible for a TDIU. As such, a remand is warranted for the AOJ to attempt to obtain these documents and associate them with the claims file. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. Additionally, obtain any relevant Social Security Administration documents regarding the Veteran's disabilities and associate them with the claims file. All records and/or responses received should be associated with the claims file. 3. Then, verify whether the Veteran's units operated in an area in or near the Korean DMZ in which herbicides were applied. The Veteran's personnel records indicate that he was assigned to Camp St. Barbara in South Korea from April 1968 to December 1969, as part of the 1st TAB 25th Artillery unit. All efforts to obtain these records, and the responses received, must be documented in the claims file, and must continue until it is reasonably certain that the records do not exist or that further efforts to obtain such verification would be futile. 4. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not already of record. Inform the Veteran and his representative of the regulation changes with regard to exposure to herbicides and veterans serving near the DMZ in Korea. 5. After completing the requested actions, and any additional notification and development deemed warranted, schedule the Veteran for VA examination(s) determine the nature and etiology of the disabilities on appeal. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The VA examiner(s) should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's diabetes had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to AO/herbicide agent exposure. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's enlarged prostate had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to AO/herbicide agent exposure. (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's tremors, claimed as Parkinson's disease had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to AO/herbicide agent exposure. (d.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's heart disability, if diagnosed, had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to AO/herbicide agent exposure. (e.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's colon disorder had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to AO/herbicide agent exposure. (f.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's colon disorder is caused by his diabetes. (g.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's colon disorder is aggravated (i.e. worsened beyond normal progression) by his diabetes. (h.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's peripheral neuropathy of the bilateral upper extremity had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to AO/herbicide agent exposure. (i.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's peripheral neuropathy of the bilateral upper extremity is caused by his diabetes. (j.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's peripheral neuropathy of the bilateral upper extremity is aggravated (i.e. worsened beyond normal progression) by his diabetes. (k.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to AO/herbicide agent exposure. (l.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea is caused by his diabetes. (m.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's sleep apnea is aggravated (i.e. worsened beyond normal progression) by his diabetes. (n.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's erectile dysfunction (ED) had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service, to include as due to AO/herbicide agent exposure. (o.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's ED is caused by his diabetes. (p.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's ED is aggravated (i.e. worsened beyond normal progression) by his diabetes. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). (Continued on the next page) 6. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 7. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.