Guidelines for Veterans -VA Law – “Agent Orange and Peripheral Neuropathy”

Note: You may find all this information somewhat overwhelming. Therefore do not hesitate to give a copy of this document to a Service Officer from one of the veterans’ organizations. You will help educate them and give them more tools to help you.  One of the most important items in these guidelines are the references to substantiate certain facts regarding the difficulty with the ‘early onset’ requirement by the VA.

If you were on the ground in Vietnam the VA law now presumes you were exposed to Agent Orange/Toxic Herbicides, the VA law now recognizes that Agent Orange or Toxic Herbicides cause Chronic Peripheral Neuropathy (or any diagnosis related to PN) so you DO NOT HAVE TO PROVE this by VA law.  The one trick the VA and IOM put in the new law is the requirement of EARLY ONSET and this is a bogus requirement.  See more below on how to challenge this part of the law.

Here is how to work an application or appeal and the references that you should use in the appeal:

First, you will find all that you need to know in the Vietnam Veterans of America (VVA) booklet to submit an Agent Orange / Toxic Herbicides claim for yourself, or for surviving family members of deceased Vietnam veterans, or for biological children of Vietnam veterans born with certain birth defects (listed in the booklet), or for incarcerated Vietnam veterans and information on other benefits available to Vietnam veteran’s with Agent Orange or toxic herbicides related illnesses.

To print a copy of the VVA booklet click on this title: “The VVA Self Help Guide to Service Connected Disability Compensation for Exposure to Agent Orange: For Veterans and Their Families”.   Then in the RIGHT column, click on the booklet and print!

Next, we highly recommend that you find a Service Officer from the VVA. Enter you’re STATE in the SEARCH form and it will list those for your entire State.  Then select the one that is nearest to you.

Effective immediately in 2015 there is a new way to file a claim according to the VA.  Click on the link to see this information.

Direct Basis: If your illness is not listed in the VA list of presumptive illnesses, the law permits the veteran to establish proof of a direct connection between exposure to Agent Orange or Toxic Herbicides, symptoms of a chronic neuropathy, diagnosis and medical history by establishment of reasonable doubt and the principle of high probability, without early on-set.

This process just requires more documentation of the medical tests, diagnosis, and statements that all other causes of your illness have been ruled out and it is more likely than not due to exposure to toxic herbicides used during the Vietnam War.   In our guidance on Chronic Peripheral Neuropathy, there are cases listed where this was accomplished to which you can refer and see the decision that was made and why.

In this process of a direct basis, the information on Affidavits and Legal Cases for AO and Peripheral Neuropathy, prior to the rule of presumption could be helpful and you may find these in this booklet by clicking on the link.

FACTS ON AGENT ORANGE AND THE VA RECOGNITION OF CHRONIC PERIPHERAL NEUROPATHY.

For decades the VA with support from the Institute of Medicine denied that there could be chronic neuropathy from agent orange exposure.  Then in 2010 after years of false claims the IOM acknowledge that they were wrong and the VA now recognizes Chronic PN from Agent Orange if you were on the ground in Vietnam with one catch which I will discuss below and how to defeat the VA on early onset.

Peripheral Neuropathy is now listed as presumptive to AO exposure see the ruling:

If your neuropathy is secondary to a VA recognized disease then you do not have to deal with the early onset requirement in VA law.  Examples would be diabetes (Prediabetes is a recognized cause of neuropathy), cancer, treatments for cancer and so forth which the VA recognizes as due to Agent Orange exposure.  These are common recognized conditions that cause chronic neuropathy.  You can quote or refer to Dr. Norman Latov’s book to show this as the case if needed.  Norman Latov MD, PhD, Peripheral Neuropathy: When the Numbness, Weakness, and Pain Won’t Stop, 2007 AAN Press

If the above is not the case, I would submit an appeal with the following statement in response to any legal claim by the VA.

NOTE:  When you submit a statement to the VA it is wise to do so using the following statement at the end by your signature and then have it notarized:

“I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)“. 

“Peripheral Neuropathy is presumptively related to exposure to Agent Orange or toxic herbicides and no proof of this relationship as a cause is required by the current VA law.  This is especially true when medicine is not able to establish another cause for the Neuropathy and often terms it idiopathic or of unknown cause.  The VA law does require the early onset at 10% disabling levels within 1 year after exposure.  However, please be advised that following the war the medical establishment did not have the clinical knowledge to diagnose, treat or even knowledge to recognize the symptoms of Peripheral Neuropathy in the 1960’s, 70’s  let alone at the 10% disabling level. The symptoms were often misdiagnosed as symptoms of other medical issues or worse dismissed. Often medical personnel would report these symptoms as of no consequence while even failing to record them under the circumstances of the battlefield. Add to this the veterans desire to do nothing but return home, ignoring the symptoms. Little research was available regarding the effects of Agent Orange on veterans during their service. Furthermore, it is now know that the component of arsenic in Agent Blue used extensively during the Vietnam War following long term exposure will cause a delayed onset of a progressive chronic sensorimotor axonal polyneuropathy and therefore rules out any need for the early onset in the law since nothing has ever been evaluated given long term exposure to arsenic and the other compounds in the various components of Agent Orange. The following references support this statement.”

Use the following references in YOUR APPEAL to support the above statement regarding early on-set.

1.No books for patient help to even recognize the symptoms of Peripheral Neuropathy, were available to the veterans until 2007: See: Norman Latov MD, PhD, Peripheral Neuropathy: When the Numbness, Weakness, and Pain Won’t Stop, 2007 AAN Press AND the book reveals the difficulty in diagnosis in the years during and following the Vietnam War.  Books on Peripheral Neuropathy

2.In 2012, Neurology struggles to diagnose Peripheral Neuropathy even in 2015: SEE: How to Diagnose Peripheral Neuropathy? No Simple Answers by Mark Moran, Neurology Today, March 15, 2012.

3. In 2001, Toxic Neuropathies were often dismissed by the principle that once removed from the toxin; the neuropathy resolved and did not become chronic! In 2010 the Institute of Medicine and the VA law recognized Agent Orange related toxic neuropathy years after exposure and this conclusion followed years of denial by the IOM and the VA.  See: Peripheral Neuropathy: A Practical Approach to Diagnosis and Management by Dr. Didier Cross, M.D., Editor, 2001 and Chapter 21, page 387, “Identification and Diagnosis of Toxic Polyneuropathies” Dr. Alan Berger.

4. Thomas H. Brannagan, MD, Director, Neuropathy Center of Excellence, Columbia University, as quoted in the DVD production “Coping with Chronic Neuropathy”, 2010, (Lecture by LTC Eugene B Richardson, USA (Ret) who went for four decades before diagnosis and treatment with chronic neuropathy that has left him VA recognized 100% disabled due to Agent Orange exposure and Peripheral Neuropathy and a link to his story is listed in a following paragraph: : “One Man’s Journey with Neuropathy”) by the Network for Neuropathy Support, Inc., dba Neuropathy Support Network. . “For years medicine did not have the tools to diagnose or treat Neuropathy and the patient was left on their own” Note: Today this DVD is endorsed by leading Neuromuscular Neurologists in the field of Peripheral Neuropathy, Psychiatrists, Psychologists, Nurses, Dermatologists, Retired General Officers, other senior officers of the U.S. Army and other medical professionals as well as by patients worldwide who are just now beginning to grasp the clinical aspects of Peripheral Neuropathy.

5. In December 2002, in the Neurology 59 (Supplement 6), Norman Latov, MD, PhD, et el, published a document regarding the difficulties in the diagnosis and treatment of immune-mediated neuropathies, titled Advances in the diagnosis and treatment of CIDP and related immune-mediated neuropathies.

6. “The Journal of the Peripheral Nervous System” the official Journal of the Peripheral Nerve Society, Volume 17, Supplement 2, May 2012, editor David R. Cornblath of John Hopkins University School of Medicine, Baltimore, MD, in the various scientific articles notes not only the current research that is being done, but the lack of the medical establishments ability to diagnose and treat many of the chronic neuropathies even in 2012 let alone in 1960 and 1970.   Dr. Thomas H. Brannagan III of Columbia University, College of Physicians and Surgeons, New York, NY, states in the opening article, “Many patients are not aware of their diagnosis, are not given the diagnosis or (are) treated, or the diagnosis is delayed” and this is in 2012!  Currently, the only treatments available for neuropathy are aimed at treating the underlying medical conditions that cause the neuropathy or treating symptoms such as pain.  Neither treats the actual nerve fiber dysfunction or fiber loss or helps nerve fibers regenerate….Continued research into the underlying mechanisms of neuropathy…are needed to address this unmet medical need among patients with neuropathy” and again this is the science in 2012 not 1960 and 1970 when no tools existed to diagnose the patients neuropathy let alone clinical knowledge to recognize the many symptoms of neuropathy following exposure to Agent Orange.

7.Louis Weimer, MD, recorded on DVD, “A lecture on Autonomic Neuropathy Under Recognized Syndrome”, January 17, 2001

8.In the Textbook of Peripheral Neuropathy by Peter D. Donofrio, M.D., published by DEMOS Medical, 2012 (numerous other authors contributing to the work) (Professor of Neurology, Chief of the Neuromuscular Section, Vanderbilt University Medical Center, Nashville, TN), notes that acute arsenic exposure is associated with sensorimotor axonal polyneuropathy – see pages 89-91 in the text article “Occupational, Biologic, and Environmental Toxic Neuropathies” by James W Albers, M.D. PhD, Emeritus Professor of Neurology, University of Michigan Health System, Ann Arbor, Michigan, for full description of symptoms and treatments. Arsenic in what was called Agent Blue was used to destroy the food supplies throughout Vietnam from 1962 to 1971. The use of arsenic was not condemned for use by the FDA until 2011 when a peer-evaluated study was completed and 89 forms of arsenic out of 102 compounds were removed from the market because they convert from organic to inorganic arsenic. Bottom line, arsenic is a heavy metal, like lead, and all heavy metals are dangerous and carcinogenic causing Chronic Peripheral Neuropathy along with other damage to the human body. To read the dangers and damages done by arsenic in Agent Blue along with the many warnings that were ignored by those responsible, see the article “Agent Blue” by Loana Hoyman in the May/June 2015 issue, Volume 35. No. 3, of the Vietnam Veterans of America publication.

9. “Arsenic in the Environment: Blue” by Loana Hoylman published in VVA Veteran (Vietnam Veterans of America) July/August 2015 Vol 35, No. 4 notes that the World Health Organization said in 2012 that Arsenic contaminated water is the greatest threat to health in the world” reporting that “Arsenic is a known neurotoxin’.   Arsenic was the main component in Agent Blue used in Vietnam.  The use of Arsenic in agricultural use was banned in 1980 with more stringent ban confirmed in 2014 when evidence of environmental poisoning was confirmed.  While we are all exposed to Arsenic, Vietnam Veterans for a year or more were “exposed to Agent Blue and are at the highest risk for the cumulative effects of Arsenic from food and water.” “The problem with arsenic is that it stays in the (human) system.  It accumulates in the body as one consumes contaminated food and comes in contact with a contaminated environment” especially if exposure is over a long period of time such as was true for the veteran of Vietnam.

10. In 2003 – FOCAL PERIPHERAL NEUROPATHIES by Geraint Fuller: See J Neurol Neurosurg Psychiatry 2003;74:ii20-ii24 doi:10.1136/jnnp.74.suppl_2.ii20  Dr GN Fuller, Department of Neurology, Gloucester Royal Hospital, Great Western Road, Gloucester GL1 3NN, UK; 
 geraint@Fullerg.demon.co.uk focal peripheral neuropathies Focal peripheral neuropathies are not at the fashionable end of the neurological street. However they are important, as they are very common, sometimes disabling, and often treatable. They can also be a source of confusion when they occur in patients with other neurological diseases.  The management of focal peripheral neuropathies is based on certain general principles with a relatively limited backing from clinical trials. These principles relate to understanding the:

• ability and limitations of neurophysiology to aid diagnosis

11. VA: Presumptive Service Connection and Disability Compensation, November 18, 2014 7-5700 R41405.  This Congressional Service Report shows clearly the serious problems of historical fact in the ‘early onset’ rule in VA law specifically for Peripheral Neuropathy.  This requirement is a bogus requirement that stands in the face of facts, not the least of which is that the medical establishment, during the years of and following the Vietnam War, could not recognize the symptoms of peripheral neuropathy let alone at the 10% disabling level as required by VA law since 2010.  This document shows clearly that there was no medical basis to make a determination as to early onset retroactive to the period of the Vietnam War, as to making any sound conclusions, establishing standards, diagnostic codes, disability determinations or for establishing an absolute mandatory time specific criteria for symptoms or a diagnosis for Peripheral Neuropathy, due to exposure to Agent Orange/Agent Blue and other toxins in the decade of and for many years following the Vietnam War.

12. Include these statements with a copy of the document ‘One Man’s Journey with Neuropathy’ showing by clear example the bogus nature of the early onset requirement.

“In 2013 the VA began recognizing that exposure to Agent Orange (AO) causes Chronic Peripheral Neuropathy.  However the Institute of Medicine (IOM) added a requirement of early on-set to connect the condition with AO exposure.   Yet during the decades of the Vietnam War and after, even to the current year, clinical diagnosis and recognition of the symptoms of PN are just now being recognized and diagnosis and treatment remain difficult.”

“For decades with the symptoms of chronic neuropathy clearly recorded in LTC Richardson’s medical records, the VA denied all of this information for six years. The VA reviewers did this out of ignorance of both the symptoms of PN and the difficulty of diagnosis by noting that the symptoms, while clearly in his medical records, by blaming the symptoms on other medical conditions.“

“Then after his Neuromuscular Neurologist submitted the facts from his service medical records, the VA reviewers lied four times about the clear statements in his medical records stating that these facts were not in his medical records.”

“Over six years later the VA is still delaying his request for a hearing on these issues, so that his claim is retroactive to his first submission of his original application and the fact that all the information in regards to these issues are included in his original submission.”

(Attach a copy of this career officer’s story (“One Man’s Journey with Neuropathy”) to your submission as it shows the bogus nature of the early onset requirement.)

“The experience of LTC Eugene B Richardson, USA (Retired) with currently 100% VA disability due to Chronic Neuropathy after service in Vietnam in 1967-68 is told in this story and shows the lack of medical science and limits of medicine in general to recognize the symptoms of neuropathy and to diagnose neuropathy, let alone at the 10% level of disability.

Helpful Doctors Statement: A statement from a doctor to the effect that “given that chronic peripheral neuropathy is now recognized as presumptive to exposure to Agent Orange or toxic herbicides by the VA and given that all other causes of the patients neuropathy have been ruled out by testing, it is likely greater than a 50% probability that the patients peripheral neuropathy is more likely than not due to exposure to Agent Orange and toxic herbicides.”

10. Board of Veterans’ Appeals cases:

Make reference to these legal cases where limited information was used to prove the veterans cases on a DIRECT basis before the VA changed the law to recognize Chronic Peripheral Neuropathy:
a. Citation Nr. 0606156 03/03/06 Docket No. 04-19 301 On Appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona

b. Citation Nr. 0802669 01/24/08 Docket No. 97-33 277 On Appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia

c. Citation Nr. 0306225 04/01/03 Docket No. 97-18 169 On Appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin

d. Citation Nr. 0821251 06/27/08 Docket No. 05-17 482 On Appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee

APPENDEX

COPIES OF SUCCESSFUL LEGAL CASES (Symptoms developed after the one year presumptive period)

1. Case from Phoenix, Arizona

Citation Nr: 0606156 Decision Date: 03/03/06 Archive Date: 03/14/06

(DOCKET NO. 04-19 301) DATE On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona

THE ISSUES

1. Entitlement to service connection for peripheral neuropathy of both lower extremities, claimed as nerve damage to the legs and feet and also as circulatory damage to the feet as due to Agent Orange.

2. Entitlement to service connection for skin cancer, claimed as spots on the face, arms, and hands that tingle and also as nerve damage.

REPRESENTATION

Veteran represented by: Arizona Veterans Service Commission

WITNESS AT HEARING ON APPEAL

Veteran ATTORNEY FOR THE BOARD

J.W. Kim, Associate Counsel

INTRODUCTION

The veteran served on active duty from March 1963 to March 1966, including service in the Republic of Vietnam.

These matters come before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In a January 2003 rating decision, the RO denied service connection for peripheral neuropathy of the left and right lower extremities. In a December 2003 rating decision, the RO continued the prior denials of service connection for peripheral neuropathy and denied service connection for skin cancer, claimed as spots on the face, arms, and hands that tingle and also as nerve damage. The veteran timely perfected an appeal of these determinations to the Board. In September 2005, the veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO.

The issue of service connection for skin cancer, claimed as spots on the face, arms, and hands that tingle and also as nerve damage, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

Resolving all reasonable doubt in favor of the veteran, peripheral neuropathy of both lower extremities is related to service, specifically to exposure to Agent Orange.

CONCLUSION OF LAW

Peripheral neuropathy of both lower extremities was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307,3.309 (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Initially, the Board finds that the agency of original jurisdiction has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005).

To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran in proceeding with this case given the favorable nature of the Board’s decision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2005).

Service connection may also be awarded for a chronic condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumptive period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a chronic disease manifests itself during service (or within the presumptive period) but is not identified until later and there is a showing of continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b) (2005); see 38 C.F.R. §§ 3.307, 3.309 (2005).

A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acne form disease consistent with Chloracne; Type II Diabetes; Hodgkin’s disease; multiple myeloma; non-Hodgkin’s lymphoma; acute and sub-acute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e); 66 Fed. Reg. 23,166, 23,168-69 (May 8, 2001)

The term acute and sub-acute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Note 2, 38 C.F.R. § 3.309(e).

The veteran contends, in essence, that he has peripheral neuropathy of both lower extremities due to exposure to Agent Orange during service. He asserts that symptoms developed in approximately 1970 and that they have gradually become worse, but that he did not seek treatment until April 2002.

The record shows that the veteran served in the Republic of Vietnam during the Vietnam era. Thus, exposure to Agent Orange is presumed. 38 C.F.R. § 3.307(a)(6)(iii). Initially, the Board notes that only acute and sub-acute peripheral neuropathy are recognized by VA as diseases associated with exposure to Agent Orange. 38 C.F.R. § 3.309(e).

In this regard, the record shows that the veteran does not have acute or sub-acute peripheral neuropathy as defined by VA regulations. The fact that the veteran is not entitled to the foregoing regulatory presumption of service connection does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

After review, the Board notes a December 2002 VA neurological disorders examination report and a July 2003 letter from Dr. Durham, the veteran’s private treating physician.

The VA examination report reflects the examiner’s difficulty in determining the etiology of the veteran’s peripheral neuropathy. The examiner stated that there is no clear cut evidence that exposure to herbicides caused the veteran’s peripheral neuropathy and acknowledged the discomfort of defining the veteran’s disorder as a neuropathy of unknown etiology. The examiner explained that unfortunately many peripheral neuropathies are of unknown etiology and to arbitrarily assign one to a caustic agent does not seem to be the best medical decision.

Dr. Durham begins his letter by noting that he has taken several comprehensive histories from the veteran and can find no other type of exposures either personal or industrial that could potentially account for the veteran’s neuropathy. He also noted reviewing the veteran’s VA medical records, including the above examination report, his own medical records, VA’s Guide on Agent Orange Claims, and the veteran’s rating decision. Dr. Durham acknowledged that the veteran’s claim was denied because he did not complain of symptoms within the very short time period cited by VA after exposure to herbicides. He stated that it is clearly documented in the medical literature that neuropathy can be latent for a period of up to decades, and a denial based on short term exposure and short term initiation of acute complaints seems to be somewhat arbitrary. He opined that, given that the veteran does not have any evidence of any of the other major problems with which neuropathy is often associated, there is at least a 51 percent probability that the veteran’s neuropathy may be directly linked to exposure to dioxin/Agent Orange.

The Board acknowledges that the veteran’s claims file was not made available to Dr. Durham. The Board observes that review of the claims file is only required where necessary to ensure a fully informed examination or to provide an adequate basis for the examiner’s findings and conclusions. See VAOPGCPREC 20-95; 61 Fed. Reg. 10,064 (1996).

In this case, the Board finds that resort to the veteran’s claims file was not necessary because the veteran provided an accurate account of his medical history, thus ensuring a fully informed examination. In this regard, the Board observes that the veteran’s account as related to Dr. Durham essentially reflected the evidence of record at that time.

Further, Dr. Durham did review several pertinent documents, including the VA examination report. Given the above, and resolving all reasonable doubt in favor of the veteran, the Board finds that the veteran’s peripheral neuropathy of both lower extremities is due to his exposure to Agent Orange during service.

ORDER

Service connection for peripheral neuropathy of both lower extremities is granted.

2. Case from Atlanta, Georgia.

Citation Nr: 0802669

Decision Date: 01/24/08 Archive Date: 01/30/08

(DOCKET NO. 97-33 277 ) DATE On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUE

Entitlement to service connection for peripheral neuropathy, to include on a direct basis and as secondary

to Agent Orange Exposure.

REPRESENTATION

Appellant represented by: Georgia Department of Veterans Services

WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

Tzu Wang, Associate Counsel

INTRODUCTION

The veteran served on active duty from July 1948 to August 1969. He served in the Republic of Vietnam from September 4,1967 to September 4, 1968.

This matter initially came before the Board of Veterans ‘Appeals (Board) from a January 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  In January 1998, the appellant and his spouse testified at the RO before a Decision Review Officer; a copy of the transcript has been associated with the claims file.

Subsequently, in December 1998 and August 2003, the Board remanded this case to the RO for further evidentiary development. In September 2007, the Board referred this case to the VA’s Veterans Health Administration (VHA) for a medical opinion. The specialist’s opinion, dated October 18,2007, has been associated with the claims folder and, as required by law and regulation, the Board provided the appellant and his representative copies of this opinion and afforded them time to respond with additional evidence or argument. 38 C.F.R. § 20.903(a) (2007). The case is now before the Board for further appellate consideration.

FINDING OF FACT

There is competent medical evidence linking the veteran’s peripheral neuropathy to military service.

CONCLUSION OF LAW

Peripheral neuropathy was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.307, 3.309 (2007).

REASONS AND BASES FOR FINDING AND CONCLUSION

The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

During the pendency of this appeal, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the appellant was not provided with notice of the type of evidence necessary to establish a disability rating or an effective date, if service connection was granted on appeal. When implementing the award, the RO will address any notice defect with respect to the initial disability rating and effective date elements. Significantly, the veteran retains the right to appeal any effective date or initial disability rating assigned by the RO.

Without deciding whether VA’s notice and development requirements have been satisfied in the present case with respect to the issue of peripheral neuropathy, the Board is taking action favorable to the veteran by granting service connection for his peripheral neuropathy, as such the Board finds that there has been no prejudice to the veteran that would warrant further notice or development and the Board will proceed with appellate review. See, e.g., VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992); See Conway v. Principi,353 F.3d 1369 (Fed. Cir. 2004); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet.App. 384 (1993).

Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1131 (West 2002);38 C.F.R. §§ 3.1(k), 3.303(a) (2007). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).

Where a veteran who served for ninety days or more during a period of war or after December 31, 1946, develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007).

Service connection may also 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) (2007). Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b) (2007).

Service connection can also be established under presumptive provisions; in particular, presumption applies to disease(s)associated with exposure to certain herbicide agents. Under 38 C.F.R. § 3.307(a)(6) (2007), a veteran who, during active military, naval or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6), (d) (2007).

In other words, if a veteran was exposed to an herbicide agent during active service, then, any disease that he has incurred, if found under 38 C.F.R.§ 3.309(e) (2007), shall be service connected, even though there is no record of such disease during service. Notwithstanding the foregoing presumption provisions, 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).38 C.F.R. § 3.309(e) (2007) lists the diseases associated with exposure to certain herbicide agents, to include: acute and sub-acute peripheral neuropathy; Chloracne, Type II diabetes, Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas.

See also Notice, 67 Fed. Reg. 42600-42608 (2002) (determined that no other condition can warrant the presumption of service connection). These diseases shall have become manifest to a degree of 10 percent or more any time after service, except that Chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (2007).

Note 2 defines acute and sub-acute peripheral neuropathy to mean transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Id.

The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C.A.

§ 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).

The veteran contends that his peripheral neuropathy was incurred in service and was the result of herbicide exposure while he served in Vietnam. At the aforementioned RO hearing, the veteran testified that he was exposed to Agent Orange in Vietnam and had experienced pain and sudden shocking sensations in his lower extremities.

As an initial matter, the Board notes that the veteran’s DD Form 214 shows that he did have active service in Vietnam from September 4, 1967 to September 4, 1968. Thus, the veteran has the requisite type of service in the Republic of Vietnam as defined by 38 C.F.R. § 3.313(a) and § 3.307(a)(6)(iii), and the presumption of exposure to herbicides agents under 38 C.F.R. § 3.307 does apply.

However, the Board finds that the veteran’s diagnosed chronic peripheral neuropathy is not a listed disease associated with exposure to certain herbicide agents pursuant to 38 C.F.R. § 3.309(e). Contrary to the definition as provided in Note 2, the veteran’s peripheral neuropathy was not resolved within two years of the date of onset. Treatment records show that the veteran was diagnosed with peripheral neuropathy in April 1989 and continues to suffer from peripheral neuropathy. Thus, although the veteran is presumed to have been exposed to certain herbicide agents, he cannot be service connected for peripheral neuropathy because it is not a disease found to be associated with herbicide exposure. Id.

Having determined that the veteran is not entitled to presumptive service connection, the Board turns to evaluate whether the veteran is entitled to service connection on a direct basis. See Combee v. Brown,34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran’s Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2724, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation).

Service medical records show treatment for painful feet and ankles starting in July 1969, which received no formal diagnosis. In May 1964, the veteran underwent a re-enlistment examination where he reported foot trouble with no diagnosis noted. At his separation examination in May 1969, the veteran again complained of foot trouble and was given the diagnosis of mild pes planus upon discharge.

Post-service medical records show that at a May 1971 VA examination the veteran complained of foot pain and was diagnosed with foot strain. In August 1978, the veteran’s complaints of numbness of the feet and ankles were diagnosed as second degree pes planus.

Finally, in April 1989, the veteran was diagnosed with peripheral neuropathy by K. W. Johnston, M.D. In December 2005 and April 2007, the veteran underwent VA examinations, which rendered differing medical opinions. After examination and review of the veteran’s claims file, the December 2005 VA neurologist diagnosed the veteran with severe peripheral neuropathy and opined that it was due to herbicides exposure.

Further, in a July 2006 addendum, the December 2005 VA examiner noted that, while in service, the veteran’s neuropathic pains in the lower extremities were overlooked or misinterpreted due to the lack of understanding of his symptoms. In April 2007, the veteran was afforded another VA neurological examination to clarify the etiology of the veteran’s peripheral neuropathy. The April 2007 VA examiner noted that the veteran was mostly wheelchair bound. Upon examination, the veteran’s musculature was slightly atrophied in the lower extremities. Monofilament testing was abnormal to both plantar and dorsal surfaces of both feet. Motor functions were impaired but functional in the lower extremities. After a review of the veteran’s electromyogram (EMG) study, the April 2007 VA examiner diagnosed the veteran with mild sensory polyneuropathy and opined that such a disease was unlikely related to exposure to Agent Orange.

In light of the differing medical opinions, the Board obtained a medical opinion from a VHA examiner, who was a specialist in neurology. This opinion dated in October 2007,was reviewed and approved by the Medical Chief of Staff. After reviewing and summarizing the veteran’s claims file, the VHA examiner found that symptoms of peripheral neuropathy have been constant since military service. Further, given the veteran’s medical history and available records, his peripheral neuropathy was chronic with a subjective progressive course.

After a full review of the record and resolving all reasonable doubt in favor of the veteran, the Board concludes that service connection for peripheral neuropathy is established. Gilbert,supra. The veteran’s contentions are corroborated by competent medical opinions. Further, the available medical evidence sufficiently documented the veteran’s symptoms of peripheral neuropathy since his military service. See 38 C.F.R. § 3.303(b).

ORDER

Service connection for peripheral neuropathy is granted.

____________________________________________

A. BRYANT

Veterans Law Judge, Board of Veterans’ Appeals

3. Case from Milwaukee, Wisconsin

Milwaukee, Wisconsin: Veterans Affairs Administration approval of service connection of Peripheral Neuropathy due to dioxin exposure in the Vietnam War.

Citation Nr: 0306225

Decision Date: 04/01/03 Archive Date: 04/10/03

( DOCKET NO. 97-18 169 ) DATE

On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin

THE ISSUE

Entitlement to service connection for peripheral neuropathy as a result of exposure to Agent Orange.

REPRESENTATION

Appellant represented by: Edward A. Zimmerman, Attorney

ATTORNEY FOR THE BOARD

Robert E. P. Jones

INTRODUCTION

The veteran had active duty service from June 1967 to July 1969, and from December 1976 to December 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which declined to reopen the veteran’s claim of entitlement to service connection for peripheral neuropathy as a result of exposure to Agent Orange.

In April 1999, the Board issued a decision finding that new and material evidence had been submitted to reopen the veteran’s claim for service connection for peripheral neuropathy as a result of exposure to Agent Orange. This decision also denied the veteran’s reopened claim for entitlement to service connection for peripheral neuropathy as a result of exposure to Agent Orange. The veteran appealed the April 1999 decision. In October 2001, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion of the parties for remand of the denial of the veteran’s claim for service connection for peripheral neuropathy as a result of exposure to Agent Orange and vacated the Board’s April 1999 decision.

FINDING OF FACT

Competent medical evidence indicates that the veteran has peripheral neuropathy as a result of exposure to Agent Orange in Vietnam.

CONCLUSION OF LAW

Peripheral neuropathy was incurred as a result of exposure to Agent Orange in service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.303 (2002).

REASONS AND BASES FOR FINDING AND CONCLUSION

Recently enacted legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative of the information and evidence necessary to substantiate a claim, and has enhanced its duty to assist an appellant in developing the evidence necessary to substantiate a claim. See Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002)).

The VCAA

The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002)). This law eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, as well as the claimant’s and VA respective development responsibilities. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2002)].

The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment but not yet final as of that date. Except for provisions pertaining to claims to reopen based on the submission of new and material evidence, which are not applicable in the instant case, the implementing regulations were also effective November 9, 2000. In this case, the appellant’s claims are not final and remain pending. The provisions of the VCAA and the implementing regulations are, accordingly, applicable. See Holliday v. Principi, 14 Vet. App. 282-83 (2001) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim].

The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and notes that the veteran was not provided the proper notice as required by the VCAA. However, considering the outcome of this decision, further development would not avail the veteran, or aid, in the Board’s inquiry, and would only serve to unnecessarily delay a decision. See Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).

Due to the outcome of this decision, there is no prejudice to the veteran in proceeding to consider the matters before the Board. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the Board will proceed to a decision on the merits.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Furthermore, a disability which is proximately due to or results from another disease or injury for which service connection has been granted shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a) (2002).

VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: Chloracne or other acne form disease consistent with Chloracne; Hodgkin’s disease; multiple myeloma; Non-Hodgkin’s lymphoma; acute and sub-acute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2002).

On December 27, 2001, the President signed into law the Veterans Education and Benefits Expansion Act of 2001 (VEBEA). Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). This included changes relating to Agent Orange claims. Specifically, there is no time limit for developing respiratory cancers. 38 U.S.C. § 1116 (a) (2) (F). Also, diabetes mellitus (Type 2) is now a presumptive disease under this section. 38 U.S.C.A. § 1116 (a) (2) (G). As these changes do not affect the veteran’s case, he is not prejudiced by the RO’s not having initially reviewed them. See Bernard, supra.

Another recent change is that a veteran is now presumed to have been exposed to Agent Orange if he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116(f), as added by § 201 of VEBEA. It is no longer required that a veteran have a presumptive disease for it to be presumed that he was exposed to Agent Orange. As the veteran served in Vietnam during this time, it is presumed that he was exposed to Agent Orange.

Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit determined that the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act does not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

However, the Court has held that, to establish service connection in this manner, the veteran is still required to present medical evidence of a nexus between the in-service injury or disease, or continuous post-service symptomatology, and the current disability. See Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

The veteran’s service medical records, including the separation examination report of November 1977, make no reference to any complaint or treatment for peripheral neuropathy. Treatment reports from Wausau Medical Center dated from December 1983 to December 1991 show that the veteran first reported complaints of tingling and numbness in his left foot in July 1986. The assessment was tendonitis.

A report of December 1991 noted the veteran’s complaints of tingling in his hands and at the left side of his face. The physician stated that these complaints may have been associated with a demyelinating syndrome.

In several letters dated in 1992, R.J.S., D.O., indicated that he was unable to determine the etiology of the veteran’s peripheral neuropathy. In a letter of March 1992, Dr. S. stated that a number of differential diagnostic considerations remained, including the possibility that the veteran had been exposed to something toxic.

In December 1992, the veteran was hospitalized by the VA to determine the nature and etiology of his peripheral neuropathy. The report of that hospitalization included the veteran’s history of neuropathy of the feet dating back to 1986. The diagnosis was polyradiculoneuropathy of uncertain etiology, questionably chronic idiopathic demyelinating polyneuropathy. The physician concluded that it was quite doubtful that the veteran’s neuropathy was related to Agent Orange exposure. However, the physician went on to say that the etiology of polyradiculopathy was unclear, and one could not entirely rule out a relation to military service.

The veteran was hospitalized again by the VA from August to September 1993 to determine whether his peripheral neuropathy was related to his service-connected malaria. The diagnosis upon admission was mild sensorimotor, chronic polyneuropathy. The veteran reported long-standing numbness and tingling of the feet and hands. EMG nerve studies showed electrophysiologic evidence of mild sensorimotor chronic polyneuropathy. These studies also showed improvement from EMG studies performed in December 1992. It was explained to the veteran that no literature supported his assertion that a relationship existed between polyneuropathy and malaria. If was further noted that exposure to Agent Orange could in fact cause polyneuropathy, but that the veteran’s polyneuropathy began long after his exposure to Agent Orange.

A June 1996 letter from Dr. M.A.H. noted that he had treated the veteran for idiopathic polyneuropathy in April 1992. Dr. H. stated that, given the absence of any other well-identified etiology, and the recent evidence linking Agent Orange exposure to polyneuropathy, it could be presumed that the veteran’s polyneuropathy was related to his exposure to Agent Orange.

The veteran was afforded an additional VA examination in July 1996. The veteran reported that his current symptoms included a pins and needles sensation in his feet, ankles, knees and hands. The diagnoses included chronic polyneuropathy, possible variation of chronic inflammatory demyelinating polyradiculopathy of unknown etiology.

In response to a request from the veteran, R.J.S., D.O., submitted two letters which addressed the etiology of the veteran’s neuropathy. In a letter of July 1996, Dr. S. stated that an extensive evaluation did not disclose the etiology of the veteran’s neuropathy. According to Dr. S., this raised a valid question as to whether the veteran’s exposure to Agent Orange was responsible for his neuropathy. Although he indicated this was a definite possibility, he said there was no way of proving this theory of causation. In a second letter dated in November 1997, Dr. S. said he considered the veteran’s neuropathy to be related to Agent Orange exposure based on the fact that no underlying pathophysiology had been determined. According to Dr. S., Agent Orange exposure was the only factor historically, and from the standpoint of his overall evaluation, that had been uncovered to be a high probability.

In correspondence dated in August 1996, a VA neurologist identified the veteran’s condition as chronic polyneuropathy as a possible variant of chronic inflammatory demyelinating polyradicular neuropathy.  The neurologist opined that this diagnosis could be explained by the veteran’s prior Agent Orange exposure. He related that the crux of the proof would have to be a review of the medical records from the Marshfield Clinic and the nerve biopsy which had been shown to be consistent with chronic inflammatory demyelinating neuropathy. He also stated that since lymphoma had also been associated with Agent Orange and that chronic inflammatory demyelinating polyneuropathy could be associated with lymphoma, the case could be made that a relationship existed between the veteran’s condition and Agent Orange exposure. That same neurologist, however, provided a contrary opinion as to the etiology of the veteran’s peripheral neuropathy in August 1997. The neurologist noted that the veteran had been on thyroxine and had had a polyclonal aberration in gamma globulin, each of which alone could be the basis for the veteran’s neuropathic signs. He added that there was nothing in the medical records linking the veteran’s neuropathy to his period of active duty service. The neurologist therefore concluded that it was unlikely that the veteran’s polyneuropathy had any relationship to exposure to Agent Orange.

In October 2002, the VA neurologist again changed his opinion. He stated that he had reviewed the veteran’s VA medical record dated July 1, 1968. He noted that the clinical symptoms described therein were consistent with acute dioxin toxicity. He also noted that the pain could have been a sign of a sub-acute neuropathy. The VA neurologist stated that the evidence indicated, with a reasonable degree of medical certainty, that the veteran’s illness could have been the start of a sub-acute neuropathy, that later worsened to give the veteran his current clinical condition.

In this case the evidence is conflicting as to whether the veteran currently has peripheral neuropathy due to exposure to Agent Orange. A VA physician in December 1992 expressed doubt that the veteran’s peripheral neuropathy disability was related to Agent Orange exposure. However, that physician went on to say that he could not entirely rule out a relation to military service. While the August 1997 VA neurologist expressed an opinion that the veteran’s peripheral neuropathy was unlikely due to exposure to Agent Orange, this neurologist changed his opinion in October 2002. After reexamining the veteran’s service and post service medical records, the VA neurologist indicated that the veteran’s current peripheral neuropathy was related to the veteran’s exposure to Agent Orange during service.

Furthermore, in a June 1996 letter, Dr. H. stated that it could be presumed that the veteran’s polyneuropathy is related to his exposure to Agent Orange. Additionally, in a November 1997 letter, Dr. S. expressed the opinion that Agent Orange exposure was the only factor historically and from the standpoint of his overall evaluation that had been uncovered to be a high probability of causing the veteran’s polyneuropathy.

As noted above, since the veteran served in Vietnam, he is presumed to have been exposed to Agent Orange. The record clearly shows that the veteran currently has peripheral neuropathy. There are several medical opinions, including an opinion from a VA neurologist, indicating that the veteran’s current peripheral neuropathy is related to the veteran’s exposure to Agent Orange in service. The Board is of the opinion that the medical evidence is at least in equipoise as to whether the veteran’s peripheral neuropathy is related to his exposure to Agent Orange during service. Accordingly, service connection for peripheral neuropathy as secondary to exposure to Agent Orange is warranted.

ORDER

Service connection for peripheral neuropathy as a result of exposure to Agent Orange is granted.

____________________________________________

U. R. POWELL

Veterans Law Judge, Board of Veterans’ Appeals

4. Case from Nashville, Tennessee

Citation Nr: 0821251

Decision Date: 06/27/08 Archive Date: 07/02/08

( DOCKET NO. 05-17 482 ) DATE

On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUE

Entitlement to service connection for peripheral neuropathy, to include as due to exposure to Agent

Orange.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

David Traskey, Associate Counsel

INTRODUCTION

The veteran had active service from April 1966 to January 1979. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a decision of February 2004 by the Department of Veterans Affairs (VA), Nashville Tennessee Regional Office (RO). The veteran’s claim was previously remanded by the Board for additional evidentiary development in August 2007. The claim is now before the Board for final appellate consideration.

FINDINGS OF FACT

1. Peripheral neuropathy was not present during service, or within one year after the last date on which the veteran was exposed to Agent Orange.

2. Competent medical evidence, however, links the veteran’s peripheral neuropathy to his active military service, and specifically to his exposure to Agent Orange.

CONCLUSION OF LAW

Peripheral neuropathy was incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303,3.304 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service Connection and Agent Orange

According to 38 U.S.C.A. § 1116(f), for the purposes of establishing service connection for a disability or death resulting from exposure to an herbicide agent, including a presumption of service connection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9,1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See also 38 C.F.R. § 3.307(a)(6).

Under 38 C.F.R. § 3.309(e), certain diseases, including acute and sub-acute peripheral neuropathy, shall be presumed to have resulted from exposure to certain herbicide agents such as Agent Orange if the requirements of 38 C.F.R. § 3.307(a)(6)are met even though there is no record of such disease during service, provided further that the rebuttable presumptions of § 3.307(d) are also satisfied.

For the purposes of this section, the term acute and sub-acute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date on onset. See 38 C.F.R. § 3.309(e), Note 2. According to 38 C.F.R. § 3.307(a)(6)(ii), acute and sub-acute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.

Thus, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, a veteran must show that he served in the Republic of Vietnam during the Vietnam War Era. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, a veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e).

Even if a veteran is not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir.1994) (holding that the veteran was not precluded under the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act from establishing service connection with proof of direct actual causation). However, where the issue involves a question of medical causation, competent evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

With respect to the claim that the veteran in this case has a disability which is due to Agent Orange exposure in service, the veteran stated in an Agent Orange Registry form dated October 1994 that he had service in the Republic of Vietnam from August 1969 to August 1970. The veteran’s DD-214 Form indicated that he was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. In addition, service treatment records (STRs) dated June 1970 revealed that the veteran was treated at the 366th Air Force Dispensary in Da Nang, Republic of Vietnam. Therefore, exposure to Agent Orange may be presumed.

The veteran must also show that he is diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e) to establish presumptive service connection based on exposure to Agent Orange. It is important to note that the diseases listed at 38 C.F.R. § 3.309(e) are based on findings provided from scientific data furnished by the National Academy of Sciences (NAS). The NAS conducts studies to “summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure.” 64 Fed. Reg. 59,232- 59,243 (Nov. 2, 1999). Reports from NAS are submitted at two-year intervals to reflect the most recent findings. Based on input from the NAS reports, the Congress amends the statutory provisions of the Agent Orange Act found at 38 U.S.C.A. § 1116 and the Secretary promulgates the necessary regulatory changes to reflect the latest additions of diseases shown to be associated with exposure to herbicides.

While acute or sub-acute peripheral neuropathy is a disability found to have a scientific relationship such that it can be presumed that exposure to herbicides used in Vietnam during the Vietnam Era is a cause of the disease, the Board notes that there is no medical evidence of record, either during service or within one year after the last date on which the veteran was exposed to Agent Orange, to indicate that the veteran was diagnosed with or treated for acute or sub-acute peripheral neuropathy. Thus, the veteran is not entitled to the regulatory presumptions outlined in 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.309(e).

Establishing Direct Service Connection

While the veteran is unable to satisfy the requirements discussed above to be entitled to the regulatory presumption for service connection for peripheral neuropathy as a result of  exposure to Agent Orange, the Board is required to evaluate the veteran’s claim on a direct basis as well.

Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Establishing service connection generally requires (1) medical evidence of a current disability; (2)medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2007).

Service connection may also 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d).

STRs associated with the claims file show that the veteran was afforded a clinical evaluation and physical examination in January 1966 prior to entrance into service. The clinical evaluation was normal and no neuropathic abnormalities were noted. The veteran provided a medical history in which he specifically denied ever having neuritis.

The veteran reported for an industrial physical in February 1969. A notation on the examination report noted that there were no abnormal signs or conditions since the veteran’s last physical. The clinical evaluation was normal and no neuropathic abnormalities were noted. The veteran was also afforded a flight training clinical evaluation and physical examination in February 1970. The clinical evaluation was essentially normal and no neuropathic abnormalities were noted. The veteran described his health as “good,” and provided a medical history in which he specifically denied ever having neuritis.

The veteran presented to sick call in December 1978 with numbness of the right leg and foot. There was no evidence of swelling or cyanosis on physical examination, but the veteran stated that the right leg and foot “gets colder than the left.” The impression was “? vascular insufficiency to rt. lower leg + foot.” The Board notes that the veteran’s separation examination is not of record.

The first pertinent post-service medical evidence of record is dated September 1988. The veteran presented to C. Donohoe, M.D. with a two-year history of pain in the chest, back, shoulder girdles, and hip girdles. A motor examination revealed proximal muscle weakness in the hip and shoulder girdles bilaterally. The impression was proximal myopathy. Dr. Donohoe recommended that the veteran undergo an electromyography study (EMG). The veteran underwent an EMG study in October 1988. The examiner noted that the short duration polyphasic motor units in the biceps were suggestive of myopathic process. No other abnormalities were noted at that time.

The veteran also underwent a muscle biopsy in October 1988. The test results showed a moderate mixed fiber atrophy and type group consistent with a denervating and reinnervating process. No evidence of muscular dystrophy or myositis was noted.

In October 1994, the veteran participated in the Agent Orange Registry Program and reported that he was directly sprayed with Agent Orange and that he ate food or drink that could have been contaminated with the herbicide. The veteran indicated that he experienced muscle spasms, among other conditions. Upon physical examination, the examiner found no evidence of edema in the extremities. The examiner described the veteran’s reflexes as “ok.”

VA afforded the veteran a Compensation and Pension (C&P) Examination in February 1995 for the purpose of assessing any neurological disorders. The veteran indicated that he developed “spasmy” pain and loss of strength in his back in 1970. The veteran reported having progressive episodes of pain in his back, arms, and legs since that time. The veteran stated that he also experienced frequent spasms in his feet, arms, and neck. The impression was recurrent muscle spasms, etiology undetermined.

The veteran underwent another private EMG study in March 2001, but the results were described as an “indeterminate study.”

The veteran presented to R. Wendland, M.D. in December 2001 for treatment of relapsing, intermittent myalgias, upper extremity tremors, and possible neuropathy. Dr. Wendland noted that the veteran was exposed to Agent Orange in service. The impression was “myocytes vs. neuropathy vs. neuromuscular disorder.”

The veteran presented to M. Box, M.D. in January 2002 for an evaluation of a potential connective tissue disease. The veteran reported a long-standing history of chronic, intermittent myalgias, upper extremity tremors, and neuropathic symptoms. At the time of the examination, the veteran indicated that he had tingling in his fingers and toes, frequent tremors in his hands, muscle twitches, and occasional loss of motor control in his legs. Dr. Box noted that the veteran served in Vietnam and was potentially exposed to Agent Orange. The impression was neuropathy, even though there was no evidence of this condition on the nerve conduction study. No evidence of myopathic processes was noted.

A letter dated July 2003 from R. Wendland, M.D. indicated that the veteran was diagnosed as having peripheral neuropathy.

In December 2003, VA sent the veteran a letter regarding his participation in the Agent Orange Registry Program. The examiner stated: As discussed at the conclusion of your visit, results of your examination and laboratory tests indicate Agent Orange cause: Peripheral neuropathy. Other items discussed were: 1) headaches; 2)skin rash; and 3) tinnitus.

The veteran presented to the VA neurology clinic in April 2004 with concerns of numbness and tingling in the fingers and toes, pain and weakness in the back, upper arms, and thighs, and tremors in the hands, even while sleeping. The veteran stated that he had these symptoms since returning from Vietnam and that his condition worsened until the mid 1980s when the symptoms stabilized. The veteran reported constant symptoms since that time. The impression was myopathy, peripheral neuropathy, and gout.

The Board notes that the veteran’s claim was remanded in August 2007 for additional evidentiary development. The veteran’s wife submitted a statement in support of the current claim in August 2007. The veteran’s wife indicated that the veteran had numbness and tingling in the hands and feet when they met in 1979. Over the years, the veteran’s condition got progressively worse and he had muscle pains, dropped items without warning, and had unintentional movements and twitching.

Also associated with the claims file is a letter dated August 2007 from the veteran’s friend, B.G. B.G. recounted an incident where the veteran dropped his fork during dinner. The veteran allegedly told B.G. that he felt tingling in his hand at that time.

The veteran underwent a peripheral nerve C&P examination in connection with the current claim in October 2007. The examiner reviewed the veteran’s claims file. The veteran reported having a chronic, gradual onset of numbness and tingling in his hands, fingers, and toes since 1972. The veteran stated that he was exposed to Agent Orange and that his condition had gotten progressively worse. Upon motor examination, the examiner noted that the veteran had decreased grip strength bilaterally on resistance with flexion and extension. The examiner also noted the presence of decreased sensation in the upper and lower extremities bilaterally. No evidence of atrophy or abnormal muscle tone or bulk was noted. However, the examiner observed tremors in the veteran’s hands bilaterally. An EMG study was conducted at that time and interpreted to show primarily small fiber sensory peripheral neuropathy consistent with a toxic neuropathy such as Agent Orange. It was noted that the veteran’s peripheral neuropathy had significant effects on his employment, including decreased manual dexterity, problems with lifting and carrying, and decreased strength in the upper and lower extremities. The impression was peripheral neuropathy due to Agent Orange. In support of this conclusion, the examiner reviewed the claims file and indicated that other possible causes of the veteran’s peripheral neuropathy were ruled out.

Given the evidence of record, the Board finds that the veteran is entitled to service connection in this case on a direct basis. See Combee, supra. As previously stated, entitlement to service connection requires a finding that there is a current disability that has a relationship to an in-service injury or disease. In the instant case, the veteran has a current diagnosis of peripheral neuropathy and the December 2003 letter from VA and the October 2007 VA C&P examination linked the veteran’s peripheral neuropathy to his period of active military service, and specifically, to his Agent Orange exposure. Accordingly, the veteran is entitled to service connection for peripheral neuropathy.

Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA)has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case ,the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.

ORDER

Service connection for peripheral neuropathy is granted, subject to the law and regulations governing the payment of monetary benefits.

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S.S. TOTH

Veterans Law Judge, Board of Veterans’ Appeals