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Filing For Presumptive A.o.

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jan

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Went to VA to sign up for the Agent Orange and was told since

its only presumptive that the vets ( from Ft. McClellan) we

cannot prove that they were exposed to any herbicides. My god it is

all over the internet about the post and Anniston. This is another slap

in the face for those exposed.

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va.gov/vetapp07/files5/0740357

Citation Nr: 0740357 Decision Date: 12/21/07 Archive Date: 01/02/08DOCKET NO. 06-30 832 ) DATE ) )On appeal from theDepartment of Veterans Affairs Regional Office in Providence, Rhode IslandTHE ISSUES1. Entitlement to service connection for the cause of the veteran's death.2. Entitlement to dependency and indemnity compensation (DIC) benefits under 38 U.S.C.A. § 1151 (West 2002). REPRESENTATIONAppellant represented by: Disabled American VeteransWITNESSES AT HEARING ON APPEALAppellant and D.B.ATTORNEY FOR THE BOARDC. Lawson, CounselINTRODUCTIONThe veteran served on active duty from December 1971 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The issues, while listed by the RO as one throughout the course of the claim, have actually each been adjudicated and appealed, and are separate. Since the claim for service connection for the cause of the veteran's death is being granted, the issue of DIC benefits under 38 U.S.C.A. § 1151 is moot. In May 2007, the appellant and D.B. testified before the undersigned Veterans Law Judge at a hearing held in Providence, Rhode Island. FINDINGS OF FACT1. The veteran died in August 2004, at the age of 52. According to the death certificate, the cause of his death was medullary carcinoma of the thyroid.2. Service connection was not in effect for any disability during the veteran's lifetime.3. Exposure to Agent Orange in service is conceded. 4. The veteran's fatal thyroid cancer has been related to in-service Agent Orange exposure. CONCLUSIONS OF LAW1. A service-connected disability caused the veteran's death. 38 U.S.C.A. §1310(a) (West 2002); 38 C.F.R. § 3.312 (2007). 2. The claim for DIC benefits under 38 U.S.C.A. § 1151 is moot. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONSSince the claim for service connection for the cause of the veteran's death is being granted and the 38 U.S.C.A. § 1151 DIC claim is rendered moot as a consequence, any deficiencies in VA's duties to notify or to assist the veteran are harmless. See 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, 3.326(a) (2007).The appellant argues that service connection is warranted for the cause of the veteran's death because the veteran was exposed to Agent Orange in service at Ft. McClellan, and that such exposure caused his fatal thyroid cancer. In a claim where service connection was not established for the fatal disability prior to the death of the veteran, the initial inquiry is to determine whether the fatal disorder resulted from disease or injury incurred in or aggravated by service. The Board must determine whether the fatal disorder should have been service-connected. See 38 C.F.R. § 3.312 (2007). Service connection is granted for a disability resulting from an injury suffered or disease contracted while in active duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. § 1110 (West. 2002); 38 C.F.R. § 3.303 (2007). In addition, certain disorders - including malignant tumors -- are presumed to have been incurred during service when manifested to a compensable degree within a specified time (usually, and for malignant tumors, one-year) following separation from service. See 38 C.F.R. §§ 3.307, 3.309 (2007). Others, but not thyroid cancer, may be presumed service-connected based on Agent Orange exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. In this case, medullary cancer of the thyroid was not shown in service or within one year of service discharge, but instead was first manifest in 2004. The veteran was stationed at Ft. McClellan from April to June 1972 and he indicated in May 2004 that he had had no symptoms or treatment of thyroid problems in service, but had been exposed to Agent Orange at Ft. McClellan during testing procedures in June 1972. In March 1999, the veteran took part in a VA Study of Army Chemical Corps Vietnam-era Veterans. It was noted that the lipid-adjusted dioxin concentration for his blood sample was measured as 2,800 ppt.The Director at the United States Armed Services Center for Research of Unit Records (USASCRUR) indicated in June 2004 that the testing use of Agent Orange had been banned in 1970, and so the veteran's exposure to Agent Orange while at Ft. McClellan would have been unlikely. However, the Director suggested that Ft. McClellan be contacted to confirm his statement and for the possibility of the use of chemicals and nerve gas during the veteran's tour of duty at Ft. McClellan. Upon further investigation, it was revealed that Ft. McClellan's historical information on the veteran's unit had been transferred to Ft. Leonard Wood in 1999. Ft. Leonard Wood's current Army Chemical School personnel had no information on the 503rd Chemical Staff Specialist Class in 1972, and referred the liaison to the USASCRUR to the Chemical Corps Museum. The museum historical information did not document the use of Agent Orange during the time the veteran was at Ft. McClellan. The museum did document the use of chemicals, but was unable to document the types of chemicals used. In light of the above information, including the finding of dioxin in the veteran's blood sample, the Board accepts that the veteran was exposed to Agent Orange at Ft. McClellan as claimed. There is reasonable doubt as to this matter.The May 2004 opinion from a VA physician, indicating that it was her opinion that it was very possible/likely that the veteran's thyroid cancer was related to his Agent Orange exposure, is accepted. There is no medical opinion of record to the contrary. Moreover, the physician gave adequate supporting reasons for her opinion. She indicated that Agent Orange is clearly considered related to the development of lung cancer which includes small cell cancer, a neuroendocrine tumor. Medullary carcinoma of the thyroid is an amine precursor uptake decarboxylation, which is a neuroendocrine tumor as well. Additionally, she reported that the Veterans and Agent Orange Update (2000) indicates that there is evidence suggesting that Agent Orange has carcinogenic activity and can cause certain cancers, specifically thyroid cancer, in animal studies. In light of the facts, the Board finds that service connection for the cause of the veteran's death is warranted under 38 U.S.C.A. § 1310.DIC benefits under 38 U.S.C.A. § 1310, granted immediately above, and DIC benefits under 38 U.S.C.A. § 1151, carry exactly the same benefits. An award of one precludes an award of the other because the same benefits can not be awarded twice. Since service connection for the cause of the veteran's death under 38 U.S.C.A. § 1310 has been granted, DIC under 38 U.S.C.A. § 1151 cannot be. As such, the appeal concerning DIC benefits under 38 U.S.C.A. § 1151 is moot and will be dismissed. ORDERService connection for the cause of the veteran's death is granted.The claim for DIC benefits under 38 U.S.C.A. § 1151 is dismissed.____________________________________________P.M. DILORENZOVeterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

Shreveport in the house :)

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DAV called this morning and informed me that Ft. McClellan is no where listed as having

herbicide use. He said his paper was from May 08. Somebody is blowing smoke and inhaling

too much wacky weed. I also checked on my claims and they are still lying dormant on the

Raters desk since 5 Jan 09. I asked the rep if the person is AwoL or just plainn lazy. I got

the Katrina call again.

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Hello Jan,,,,,please understand that if you have a disease that is known to be linked to dioxin , that the VA wants to use the acute and subacute rule with you to deny it. However the fact that chronic diseases are also well known to dioxin it will be up to the Vet to prove the link. You will need to have your medical evidence with a good Independent Medical Opinion that has fully reviewed your evidence , your Service Military and Service Medical records , and any other pertinent evidence such as buddy statements, environmental records to support the NEXUS the doctor will supply. It has to be well written and worded correctly to satisfy the courts and VA. I had posted a link for BVA cases of one vet that prevailed with AO and chronic peripheral neuropathy which is very common. I myself am suffering from this. Search BVA , and Dr. Durham and his compelling statement. You may get it denied but the appeals process is for the arguments of acute/subacute verses chronic. It is a favorite trick the VA uses but actually does not hold water when challenged by competent medical opinions and by records of scientific community. Most Vets do not challenge this rule and many VSOs just do not understand the strength of what I am telling you. Please use the other link to also see that training programs from the 1973 Herbicide Training Seminar will show a large number of posts that showed their representatives that attended. I wish you well in your claim and do not get all hung up with the AO registry as there is plenty to support a Vet other than that. And remember .....NEVER GIVE UP. God Bless. C.C.
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  1. Hello Jan,,,,,please understand that if you have a disease that is known to be linked to dioxin , that the VA wants to use the acute and subacute rule with you to deny it. However the fact that chronic diseases are also well known to dioxin it will be up to the Vet to prove the link. You will need to have your medical evidence with a good Independent Medical Opinion that has fully reviewed your evidence , your Service Military and Service Medical records , and any other pertinent evidence such as buddy statements, environmental records to support the NEXUS the doctor will supply. It has to be well written and worded correctly to satisfy the courts and VA. I had posted a link for BVA cases of one vet that prevailed with AO and chronic peripheral neuropathy which is very common. I myself am suffering from this. Search BVA , and Dr. Durham and his compelling statement. You may get it denied but the appeals process is for the arguments of acute/subacute verses chronic. It is a favorite trick the VA uses but actually does not hold water when challenged by competent medical opinions and by records of scientific community. Most Vets do not challenge this rule and many VSOs just do not understand the strength of what I am telling you. Please use the other link to also see that training programs from the 1973 Herbicide Training Seminar will show a large number of posts that showed their representatives that attended. I wish you well in your claim and do not get all hung up with the AO registry as there is plenty to support a Vet other than that. And remember .....NEVER GIVE UP. God Bless. C.C.
  2. Hi, I am trying to get in touch with personnel that were stationed at Clark Air Force Base, Roosvelt Roads nas Puerto Rico in the early and mid 70's. I know both stations are contaminated with dioxins and other chemicals
    I am suffurring from heart decease and diabetes among other illnesses. also need information on how new law will apply to me. The folks at the 1000 # do'nt tell you much.. if you can please help....

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