diabetes 2 Important Bva Decisions On Chronic Peripheral Neuropathy

[Capt.]

Hello all,

Please note both of these BVA rulings are GRANTED and Chronic not following the VA acute , subacute rules in the 38 CFR 3.307 (a) (6) and 38 CFR 3.309 (e). USING 38 U.S.C.A. 5107 (b): and 38 CFR 3.102, 3.303. Also note Combee v Brown and the Public Law Bi, 102-4, 2, 105 Stat. 11 (1991). Also the McCartt v West 12 Vet. App. 164,167 (1999). Important to also note 38 U.S.C.A. 5107 (b); 38 cfr 3.102, 3.303.

The second ruling please note the CHRONIC opinion from Dr. Durham which shoots down the acute and subacute rulings.

THESE ARE HUGE DECISIONS that should be used by all veterans exposed to Agent Orange . AND NOT DIABETES TO have Peripheral Neuropathy as secondary and presumptive........... THESE ARE DIRECT EXPOSURE ISSUEs for service connection . ALSO CASUAL EXPOSURE COUNTS IN FAVOR of the Veteran. I am using these in my claims.

Hope this helps. NEVER GIVE UP. God Bless, C.C.

Citation Nr: 0529441

Decision Date: 11/02/05 Archive Date: 11/14/05

DOCKET NO. 02-05 373 ) DATE

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On appeal from the

Department of Veterans Affairs (VA) Regional Office (RO)

in Houston, Texas

THE ISSUE

Entitlement to service connection for peripheral neuropathy,

claimed as due to exposure to Agent Orange in service.

REPRESENTATION

Appellant represented by: Texas Veterans Commission

ATTORNEY FOR THE BOARD

D. M. Casula, Counsel

INTRODUCTION

The veteran had active service from January 1967 to January

1969.

This matter comes before the Board of Veterans' Appeals

(Board) from a September 2000 RO rating decision which, in

pertinent part, denied service connection for peripheral

neuropathy, secondary to herbicide exposure. In

February 2003 the Board issued a development memorandum and

notified the veteran that the Board would be developing

evidence concerning his appeal, pursuant to regulations in

effect at that time. Subsequently, those regulations were

invalidated, and as a result, in July 2003, the Board

remanded this matter for further evidentiary development.

FINDINGS OF FACT

1. The veteran had active military service in the Republic

of Vietnam during the Vietnam era, and is therefore presumed

to have been exposed to Agent Orange, or other herbicide

agent, during his service in Vietnam.

2. The weight of the competent medical evidence of record is

in approximate balance as to whether the veteran's peripheral

neuropathy was incurred as a result of exposure to Agent

Orange or other herbicide agents during service.

CONCLUSION OF LAW

Giving the benefit of the doubt to the veteran, peripheral

neuropathy was incurred as a result of exposure to Agent

Orange or other herbicide agents in service. 38 U.S.C.A. §§

1110, 1116 (West 2002); 38 C.F.R. §§ 3.102, 3.303,

3.307(a)(6), 3.309(e) (2005).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

A. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes

VA's duty to notify and assist claimants in substantiating a

claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,

5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and

3.326(a). In this case, in letters dated in May 2001,

December 2003, and June 2004, the veteran was notified of the

duty to notify and assist requirements of the VCAA. However,

in light of the result here (a full grant of the claim for

service connection), the Board finds that a detailed

discussion of the VCAA is unnecessary. Any potential failure

of VA in fulfilling its duties to notify and assist the

veteran is essentially harmless error.

B. Service Connection for Peripheral Neuropathy

Service connection may be granted for a disability resulting

from injury or disease incurred in or aggravated by active

service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

In this case, the veteran contends that he was exposed to

Agent Orange in service, and that such exposure caused his

peripheral neuropathy. The statute pertaining to claimed

exposure to Agent Orange is 38 U.S.C.A. § 1116. Regulations

issued pursuant thereto 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 acneform disease consistent

with chloracne; Type 2 diabetes mellitus, Hodgkin's disease;

multiple myeloma; non-Hodgkin's lymphoma; acute and subacute

peripheral neuropathy; porphyria cutanea tarda; prostate

cancer; respiratory cancers; and, soft-tissue sarcoma (other

than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or

mesothelioma). 38 C.F.R. § 3.309(e).

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, pursuant to

38 C.F.R. § 3.309(e). Acute and subacute peripheral

neuropathy must 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 service.

38 C.F.R. § 3.307(a)(6)(ii).

The law further provides that 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 establish that the veteran was not

exposed to any such agent during that service." 38 U.S.C.A.

§ 1116(f). Review of the veteran's service personnel records

confirms that he served in the Republic of Vietnam during the

Vietnam era. Because the veteran served in Vietnam during

the appropriate period of time, and there is no affirmative

evidence demonstrating that he was not exposed to Agent

Orange or other herbicide therein, he is presumed to have

been so exposed during service.

In addition to the foregoing presumption provisions, which

arose out of the Veterans' Dioxin and Radiation Exposure

Compensation Standards Act, Public Law No. 98-542, § 5, 98

Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991,

Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the U.S.

Court of Appeals for the Federal Circuit has determined that

a veteran is not precluded from establishing service

connection with proof of actual direct causation. Combee v.

Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Court of Appeals

for Veterans Claims has specifically held that the provisions

of Combee are applicable in cases involving Agent Orange

exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999).

Hence, the veteran may establish service connection for

peripheral neuropathy by presenting competent evidence which

shows that it is as likely as not that the disorder was

caused by in-service Agent Orange exposure. 38 U.S.C.A. §

5107(b); 38 C.F.R. §§ 3.102, 3.303.

With the above criteria in mind, the evidence will be briefly

summarized. Service medical records show no complaints of or

treatment for peripheral neuropathy. Post-service treatment

records show that the veteran was first diagnosed with

peripheral neuropathy in June 2000. In a September 2000

letter, the veteran's private neurologist, Dr. Yu, noted that

the veteran presented in August 2000 with a three- to four-

year history of slowly progressive bilateral lower extremity

pain and numbness. The diagnosis was sensory polyneuropathy.

The RO has denied service connection on a presumptive basis

for peripheral neuropathy, claimed as due to exposure to

Agent Orange, based upon a finding that the veteran has

developed peripheral neuropathy only in the recent past, and

that acute or subacute peripheral neuropathy was not

diagnosed within a year of his last exposure to a herbicide

agent. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). While it is

true that the veteran's peripheral neuropathy may not be

service connected on a presumptive basis in this case for the

reasons espoused by the RO, this does not prevent the

veteran's claim for service connection for peripheral

neuropathy from being considered for direct service

connection under Combee.

In that regard, the Board notes that there are both private

and VA medical opinions of record which support a finding

that the veteran's peripheral neuropathy is related to

exposure to Agent Orange in service. In August 2000, Dr. Yu

(the veteran's private neurologist) opined that the veteran's

symmetric sensory polyneuropathy was "possibly due to toxin

exposure". In September 2000, Dr. Yu noted that extensive

workup to rule out causes of sensory polyneuropathy had been

negative, and opined that the veteran's toxic exposure to

dioxin was the cause of his sensory polyneuropathy. On VA

examinations in May 2003 and June 2005, the examiner noted

that the veteran had undergone an extensive workup to

determine any underlying etiology for his sensory peripheral

neuropathy, but the detailed workup was negative. The VA

examiner then opined that the veteran's sensory peripheral

neuropathy was at least as likely as not causally related to

exposure to Agent Orange in service. The Board notes that in

June 2005 the VA examiner also reviewed the veteran's claims

file in conjunction with the VA examination. The Board also

notes that there is no negative or contrary evidence of

record, to suggest that the veteran's peripheral neuropathy

was not due to exposure to Agent Orange or was due to a cause

other than herbicide exposure. Both the veteran's private

neurologist and the VA examiner agree that the veteran's

detailed workup was negative for finding the etiology of his

sensory peripheral neuropathy.

Thus, given the positive medical evidence in support of the

veteran's claim and considering the entire evidence of

record, the Board finds that a reasonable doubt is presented

as to whether all the elements for service connection for

peripheral neuropathy, as a result of exposure to Agent

Orange or other herbicide agents, are established.

Accordingly, without finding error in the RO's action, the

Board will exercise its discretion to find that the evidence

is in relative equipoise and conclude that the claim may be

granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert

v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for peripheral neuropathy, as due to

exposure to Agent Orange in service, is granted.

_________________________

ANDREW J. MULLEN

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

____________________________________________

K. Osborne

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Citation Nr: 0606156

Decision Date: 03/03/06 Archive Date: 03/14/06

DOCKET NO. 04-19 301 ) DATE

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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 acneform disease

consistent with chloracne; Type II 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 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 subacute 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 subacute

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 subacute 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.

REMAND

The veteran contends, in essence, that he has spots on his

face, arms, and hands that tingle due to nerve damage from

exposure to Agent Orange. He also contends, in essence, that

he has had skin cancers also from exposure to Agent Orange.

After review, the Board observes that further development is

necessary prior to adjudicating this claim. In an August

2004 statement, the veteran indicated that he had submitted

copies of medical records from two dermatologists. The Board

observes that the above medical evidence is not of record.

In light of VA's notice of the existence of outstanding

medical evidence, the appeal must be remanded.

Accordingly, the case is REMANDED for the following action:

1. The RO should attempt to obtain and

associate with the claims file medical

records from the two dermatologists

referenced by the veteran in his August

2004 statement.

2. After all evidentiary development has

been completed, including a VA examination

if deemed necessary, the RO should

readjudicate the issue of entitlement to

service connection for skin cancer,

claimed as spots on the face, arms, and

hands that tingle and also as nerve

damage.

3. If the benefit sought on appeal

remains denied, the veteran and his

representative should be furnished a

supplemental statement of the case and

afforded an appropriate opportunity for

response before the claims file is

returned to the Board for further

appellate consideration.

Thereafter, the case should be returned to the Board, if in

order. The Board intimates no opinion as to the ultimate

outcome of this case. The veteran need take no action unless

otherwise notified.

The veteran has the right to submit additional evidence and

argument on the matter the Board has remanded. Kutscherousky

v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law

requires that all claims that are remanded by the Board of

Veterans' Appeals or by the United States Court of Appeals

for Veterans Claims for additional development or other

appropriate action must be handled in an expeditious manner.

See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).

______________________________________________

K. OSBORNE

Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Edited April 26, 2011 by Capt.Contaminate

[john999]

Polyneuropathy means you have it in more than one limb. I have it in all four. Just because it does not show on EMG does not mean you won't be service connected for it.

[Berta]

John is correct.

I haven't found the older post but if it is due to any SC disability and claimed , the VA will SC it.

[buickx]

Polyneuropathy is you have neuropathy, but it turns on and off......the pain is not constant...I have it...and sc for it...

[Capt.]

Hello,,,, Papa,,, I also suffer from severe Peripheral Neuropathy of all four extremities. It will be SC if you have evidence of EXPOSURE and a solid medical Nexus. Please look at the 2 cases I posted and have corrected. They are not related to AO with DMII. These are huge granted PN awards.

Berta and Don I think you may have duplicated the Citation numbers with Nexus from Dr. Durham and Dr. Yu but thats fine as many of our Vets have DMII but alot don't. The Poly neuropathy will be used to service connect but it will take the Exposure issue , Nexus and TIME to win. This stuff is no fun for those of us having to suffer from it and the other problems.

Pappa there is also evidence of PN being related possibly secondary to IHD/CAD/Atherosclerosis or possibly linked to causing it. The chemical exposure issues can be linked to both. Try the National Institute of Health under the search for PN . Remember though dig in and NEVER GIVE UP. God Bless, C.C.

[jbasser]

Folks there is a difference in the neuropathy.

For AO exposure there is 2 avenues.

Avenue is the Vet develops DMII and develops Dieabetic Neuropathy as secondary to the DMII.

The second avenue is a direct service connection based on Exposure to Agent Orange diagnosed as Chronic and can remain latent inside the body for decades and can rear its ugly head at any time so this tosses out the acute-sub acute rule or the presumptive listed in the regs.

Refer to Dr Durham's citation posted by Captain Contaminate.

JBasser

[Papa]

The below comes from the National Institute of Health. Thought it interesting.

What is Peripheral Neuropathy?

Peripheral neuropathy describes damage to the peripheral nervous system, which transmits information from the brain and spinal cord to every other part of the body.

More than 100 types of peripheral neuropathy have been identified, each with its own characteristic set of symptoms, pattern of development, and prognosis. Impaired function and symptoms depend on the type of nerves -- motor, sensory, or autonomic -- that are damaged. Some people may experience temporary numbness, tingling, and pricking sensations, sensitivity to touch, or muscle weakness. Others may suffer more extreme symptoms, including burning pain (especially at night), muscle wasting, paralysis, or organ or gland dysfunction. Peripheral neuropathy may be either inherited or acquired. Causes of acquired peripheral neuropathy include physical injury (trauma) to a nerve, tumors, toxins, autoimmune responses, nutritional deficiencies, alcoholism, and vascular and metabolic disorders. Acquired peripheral neuropathies are caused by systemic disease, trauma from external agents, or infections or autoimmune disorders affecting nerve tissue. Inherited forms of peripheral neuropathy are caused by inborn mistakes in the genetic code or by new genetic mutations.