Iom Ao Update

[Berta]

http://www.iom.edu/Reports/2011/Veterans-and-Agent-Orange-Update-2010.aspx

[john999]

My chances of dying from an AO disease are getting better and better. This is very encouraging.

[evandc]

"is not necessarily transitory"

So my question is this good news for me? I have mild PN both hands, servere in right foot & leg & something like unbearable in the left foot & leg, not a Diabetic, have VA statement likely as not caused from AO, connected already for Prostate Cancer & IHD plus the first 100% for PTSD. On 2 meds & use cream for pain & 2 pain meds for PN. I've never filed a claim because not Diabetic & til now not worth troulbe is this about to change?

Thanks,

Don

[SP4RVN1971]

It's strange that my DMII is under control with med's, but my PN is out of control. The pain in my leg's and hand's are terrible, and I wander why PN is secondary to DMII???? The PN should be a primary to Agent Orange! God bless

Edited October 1, 2011 by SP4RVN1971

[john999]

It might be good to file a claim for the PN even if you get rejected. The VA moves slowly but ten years from now PN may be presumptive on its own for the chronic type. Hell, we may all be dead by then but you might get an extra 20%.

[SP4RVN1971]

I like the way you think!!

[Capt.]

Hello all, PN is rated by VA as secondary to Diabetes II however this is also under presumptives and under acute and sub acute directory from the 38 CFRs. It does say that if it is direct from AO or Herbicide that the VA and if outside of Vietnam then the rating can be SC 'd but it will take the Veteran to connect the dots. There are many of us who have PN but not Diabetes and to chart the course necessary to satisfy this detour from the more common PN VA claim will take a good IMO , medical evidence , medical test, and probably the BVA or higher as the Regional Offices are reluctant to read the regulations. This probably will result in a denial but the Veteran still can appeal the denial to the BVA . It is here that the regulation of direct and PN without diabetes can be adjudicated.....which probably means remand back to the VARO which they should have thought of this the first time around.

Citation Nr: 0529441

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

DOCKET NO. 02-05 373 ) DATE

)

)

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.

I would suggest that you go to the 38 CFRs and the m21's and see the wording on PN and the distinction of acute and subacute verses chronic. I have the BVA decisions (2) which are dealing with this. The BVA did award both veterand PN WITHOUT Diabetes II and they both were CHRONIC. Though very unusual , the BVA did set a precedence and should be used as record in the Vets favor and claim if applicable.

I hope you get to where you need to be but please remember ...NEVER GIVE UP. God Bless, C.C.

Edited October 10, 2011 by Capt.Contaminate