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allan

Va Appeals Court Agent Orange Win For People Who Were On Guam.

Question

Sent: Wednesday, August 26, 2009 9:33 AM

Subject: FW: Guam AO Award

VA Appeals Court Agent Orange win for people who were on Guam. Pass along to anyone fighting VA for Guam benefits

http://www.countyofkings.com/vetserve/Vete...0on%20Guam.html

Citation Nr: 0527748

Decision Date: 10/13/05 Archive Date: 10/25/05

DOCKET NO. 02-11 819 )

On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUE

Entitlement to service connection for diabetes mellitus secondary to herbicide exposure.

REPRESENTATION

Veteran represented by: Massachusetts Department of Veterans Services

WITNESSES AT HEARING ON APPEAL

The veteran and his brother

ATTORNEY FOR THE BOARD

L. J. N. Driever, Counsel

INTRODUCTION

The veteran had active service from December 1966 to December 1970, including in Guam from December 1966 to October 1968.

This claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

The veteran and his brother testified in support of this claim at a hearing held at the RO before the undersigned in May 2004. In September 2004, the Board remanded this claim to the RO via the Appeals Management Center in Washington, D.C.

FINDINGS OF FACT

1. VA provided the veteran adequate notice and assistance with regard to his claim.

2. Diabetes mellitus is related to the veteran's active service.

CONCLUSION OF LAW

Diabetes mellitus was incurred in service. 38 U.S.C.A. 1110, 5102, 5103, 5103A (West 2002); 38 C.F.R. ?? 3.159, 3.303 (2004).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. ?? 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. ?? 3.102, 3.156(a), 3.159 and 3.326 (2004). The VCAA and its implementing regulations are applicable to this appeal.

The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence is to be provided by the claimant and which portion of the evidence VA will attempt to obtain on behalf of the claimant.

The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to his claim. Regardless, given that the decision explained below represents a full grant of the benefit being sought on appeal, the Board's decision to proceed in adjudicating this claim does not prejudice the veteran in the disposition thereof. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

Analysis of Claim

In multiple written statements submitted during the course of this appeal and during his personal hearing, the veteran alleged that he developed diabetes mellitus as a result of his exposure to herbicide agents while serving on active duty in Guam. His military occupational duties as an aircraft maintenance specialist allegedly required him to work in an air field, the perimeter of which was continuously brown due to herbicide spraying every three months. The veteran also alleges that he recalls seeing storage barrels at the edge of the base, which he now knows housed herbicides. Following discharge, Anderson Air Force base in Guam, where the veteran was stationed, underwent an environmental study, which showed a significant amount of dioxin contamination in the soil and prompted the federal government to order a clean up of the site.

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 (2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. ? 3.303(d).

Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is

not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. ? 3.303(b).

In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. ? 1116(a) (West 2002); 38 C.F.R. ?? 3.307(a)(6), 3.309(e) (2004). In this regard, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. ? 1116(a)(3).

Diseases associated with such exposure include: chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; multiple myeloma; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft- tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. ? 3.309(e) (2004); see also 38 U.S.C.A. ? 1116(f), as added by ? 201© of the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).

These diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy 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). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. ? 3.307(a)(6)(iii).

The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341, 346 (1994); see also 61 Fed. Reg. 41,442, 41,449 and 57,586, 57,589 (1996); 67 Fed. Reg. 42,600, 42,608 (2002).

Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, ? 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, ? 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit has determined that 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 also 38 C.F.R. ? 3.303(d).

In order to prevail with regard to the issue of service connection on the merits, "there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); medical or, in certain

circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. ? 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The veteran's service medical records reflect that, during service, the veteran did not report herbicide exposure. In addition, he did not receive treatment for and was not diagnosed with diabetes mellitus. His DD Form 214, DD Form 7 and Airmen Performance Reports dated in March 1968 and October 1968, however, confirm that he had active service from December 1966 to December 1970, including at Anderson Air Force base in Guam from December 1966 to October 1968. He has submitted copies of articles indicating that Agent Orange may have been stored and/or used on Guam from 1955 to the late 1960s, which is the time period during which the veteran served there. These articles also reflect that in the 1990s, the Environmental Protection Agency listed Anderson Air Force base as a toxic site with dioxin contaminated soil and ordered clean up of the site. Given this evidence, particularly, the articles reflecting the latter information, and the veteran's testimony, which is credible, the Board accepts that the veteran was exposed to herbicides during his active service in Guam.

The veteran did not serve in Vietnam; therefore, he is not entitled to a presumption of service connection for his diabetes mellitus under the aforementioned law and regulations governing claims for service connection for disabilities resulting from herbicide exposure. As previously indicated, however, the veteran may be entitled to service connection for this disease on a direct basis if the evidence establishes that his diabetes mellitus is related to the herbicide exposure.

Post-service medical evidence indicates that, since 1993, the veteran has received treatment for, and been diagnosed with, diabetes mellitus. One medical professional has addressed the question of whether this disease is related to such exposure. In June 2005, a VA examiner noted that the veteran had had the disease for 12 years, had no parental history of such a disease, and had served in Guam, primarily in an air

field, which was often sprayed with chemicals. She diagnosed diabetes type 2 and opined that this disease was 50 to 100 percent more likely than not due to the veteran's exposure to herbicides between January 1968 and April 1970, when he served as a crew chief for the 99th bomb wing on the ground and tarmac. She explained that such exposure, rather than hereditary factors, better explained the cause of the disease given that the veteran's parents did not have diabetes.

As the record stands, there is no competent medical evidence of record disassociating the veteran's diabetes mellitus from his in-service herbicide exposure or otherwise from his active service. Relying primarily on the VA examiner's opinion, the Board thus finds that diabetes mellitus is related to the veteran's service. Based on this finding, the Board concludes that diabetes mellitus was incurred in service. Inasmuch as the evidence supports the veteran's claim, that claim must be granted.

ORDER

Service connection for diabetes mellitus secondary to herbicide exposure is granted.

"Keep on, Keepin' on"

Dan Cedusky, Champaign IL "Colonel Dan"

See my web site at:

http://www.angelfire.com/il2/VeteranIssues/

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Bumping it up for potential Guam AO veteran guest who might join.

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allan, i sent you a pm, but if anybody knows:

i have civilian family members who were stationed on guam in early 70s as children, one has had really bad respiratory problems since childhood, also has cystic fibrosis. could agent orange be the blame? if so, does he have any legal repurcussions to file against government? is not a veteran, but dependent of veteran stationed there.

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I was surprised Colonel Dan sent me this the other day-I think I sent him this news when the vet won.

Other vets who served outside of Vietnam and Korea within the Korea AO dates have succeeded on AO claims.

I posted a link to these decisions here some time ago-

There may even be more by now at the AO web site.

The Alaska vet who proved AO disability-I think that was a AMC award on remand from the BVA.It might not be public knowledge yet at the BVA.

If a veteran-such as Kurt Priessman -(who proved AO exposure in Thailand -and also was instrumental in the new procedure for certain Thailand vets- posted here Wednesday-

can prove he or she was directly excposed to AO no matter where-and has an AO presumptive disability -they will succeed in their claim.

NOT easy- but it can be done as the BVA awards have revealed.

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I was surprised Colonel Dan sent me this the other day-I think I sent him this news when the vet won.

Other vets who served outside of Vietnam and Korea within the Korea AO dates have succeeded on AO claims.

I posted a link to these decisions here some time ago-

There may even be more by now at the AO web site.

The Alaska vet who proved AO disability-I think that was a AMC award on remand from the BVA.It might not be public knowledge yet at the BVA.

If a veteran-such as Kurt Priessman -(who proved AO exposure in Thailand -and also was instrumental in the new procedure for certain Thailand vets- posted here Wednesday-

can prove he or she was directly excposed to AO no matter where-and has an AO presumptive disability -they will succeed in their claim.

NOT easy- but it can be done as the BVA awards have revealed.

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Actually 6 cases have been won for AO exposure and Guam. A case was just recently won at the AMC, it isn't posted yet. Two cases are posted on Bluewater, one is same as the post here, one case was won in Kentucky but vet didn't want to post, and 2 cases were won since April. These cases that have been won are 2 at BVA and 4 at the RO. Three different bases have been implicated and cases have been won for both navy and airforce persons. A number of cases are being turned over to lawyers that think they will win.

The evidence is there for exposure by way of the sole-source drinking water aquifer and base use, storage and disposal. When filing a claim make sure you're clear as to how you were exposed, the drinking water and base use, storage and disposal.

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      I have nightmares weekly. I have flashbacks. Something will trigger memories and I'll have panic attacks. I have intimacy issues.  I have ED issues that started at an early age. I have issues in places where there may be Male Public Nudity ( Locker rooms, even public restrooms  I'll use a stall ) Just because it triggers flashback of them and what they did. I have issues with Male authority figures. I have the tendency to back down from and conflicts even though and right. Fear retaliation  And the big one still fear retaliation from them. Still fear after almost 30 years that exposing them and what happened they will find away to get me.     Thank you to everyone who reads this. Now my questions:   Is there anything else I should include to help my case? I'm aware that after my meeting with the VSO they will set me up with a DBA with someone from the VA. What can I expect from that meeting and how should I prepare for it? What about secondary PTSD symptoms what applies? After meeting with my personal doctor he actually interned  at the VA center I going to. He suggested  apply for ratings secondary to the PTSD rating for the following. Erectile dysfunction, hypertension. Do you feel that these are ok? Are there others that I should consider or be aware of?    
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    • So, my lawyer sent an IME w/ IMO and filed a supplemental claim solely for IU on March 20.

      It was closed on March 25, and va.gov just states claim closed and nothing more.

      Hopefully, I get good news.
    • Thanks for the responses. I am filing a new claim but will continue pushing the NOD. My new question is it stated in law or statute that if during the claims process the VA finds conditions that could possibly rate service connection that was not originally filed for, the VA will “invite” the veteran to file the claim on the claims form. Reason I ask is that my private DBQs, NEXUS letter, and even the VA nurse examiner's DBQs lists bilateral upper radiculopathy as present. If it is written in statute or official guidance it might qualify as a CUE. Just looking at all angles. 
    • Everyone needs to read our stories so they can try to avoid these screws by the va...
      Thank you, everyone contributes, good or bad, all of our stories will help others, and yes, they have been stated by others for ages, over and over, but we just get depressed, and the time turns into years as they screw us..

      Welcome to the department of Veterans Affairs!  I can honestly say, "been there, done that".  

      Even after winning my tdiu in 2017, it was back to the drawing board as VA hornswaggeld my effective date.  (but of course).  

      I finally won my tdiu effective date in Feb. 2020, 18 years after I first applied!!!  

      Here is how they managed to drag mine out 18 years:

      1.  They never adjuticated my decison until 2009, where they called it "moot".  

      2.  I appealed, said it was not moot because it could result in an earlier effective date and SMC S under Bradley vs Peake.  The judge agreed with me, and ordered VARO consider me for extra schedular TDIU, under 4.16 b.  

      3.  The VARO piddles with  the remand for 3 years, and hoped I wouldnt notice.  I noticed and raised cane until they adjuticated it.  (denied of course).  

      4.  Finally, after the baord denied again, I hired a lawyer, in 2014, and appealed to CAVC.   

      5.  The lawyer won a remand, got an IMO and I won tdiu in 2017.  But at the wrong effective date, even after 15 years.  

      6.  I hired another lawyer, Chris Attig, and appealed the effective date, and he won a remand for effective date.  Trip 2 to CAVC.  

      7.  Mr. Attig won a remand, and advised me to get another IMO.  

      8.  The board awarded my earlier effective date in Feb. 2020.  

           So, I do have advice fighting VA for TDIU, they fought and fought and I hung in there and won it all.  

      ADVICE:  Dont count on VA, they could easily throw your fax in the trash.  Follow up!  
    • "Keep in mind that due to the nature of the digestive system, VA would most likely combined your conditions and pay you at the higher rate to avoid pyramiding".    That is one of my main gripes.  They are only listing the GERD with hiatal hernia and ignoring the rest of my gastric issues such as the gastritis which I also had in service.  I included it in my 2007 request for increase and again in 2019.  The info from the civilian dr that stated I had the gastritis with H pylori was not even provided to the examiner in 2007, nor did he have my VA health records. The 2019 request was based on an EGD I had AT THE VA in Jan 2019.   I filed for an increase 6 Mar and they did an ACE on 27 Mar and downgraded to noncompensable on that date.  The only reason I was thinking CUE:  38 CFR § 3.326 - Under Examinations  it states (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination".  
    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
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