diabetes Agent Orange Question(S)

[CCC]

Hey, all. Not new here, but can't remember my log-in information, so I am ashamedly starting over. :)

I have a question or two related to Agent Orange exposure, disability, etc. If there's a place where I can read up on it, please direct me so I don't have to waste anyone's time, but y'all have been so helpful before.

OK, my husband is disabled. His paperwork says 50% but he's rated at 60%. I don't understand how that works, but he said it's a VA thing, and not supposed to make sense.

Reading here, and online, we got a little information regarding his exposure. He was never in Vietnam, but was Vietnam era. He was working at several Army bases as an MP, where AO was sprayed as a defoliant. Many of those Army bases are now considered "superfund" sites by the EPA because of the toxicity levels.

He has heart disease, type 2 diabetes, emphysema and a myriad of other conditions. The only one, at this time, considered service connected, is his heart. He had a heart attack when he was stationed in California, and this was about 10 years after his exposure to AO. This is all in his records, and he has no history of heart disease, himself or family.

We got notification yesterday of other documents needed, such as proving how AO resulted in heart disease, etc. I was wondering if anyone had any idea of how I would go about doing that? I'm not sure what my next step should be.

We are a little confused on how we are supposed to proceed. There were no tests done on him while he was in the military for anything - he said in the entire 20 years he was in the military, never once does he remember his finger being pricked or being checked for sugar. He remembers being in Ft. Carson, CO, and they were going to have to ship him to another base because he was having so much trouble breathing - he couldn't acclimate to the higher climate.

He was stationed at 5 different sites which are now considered EPA superfund sites, and especially remembers AO being sprayed along the fenceline, regularly, at Seneca Army Depot, also a superfund site. He said they sprayed it regularly, because it was a nuke depot, and they had to keep the weeds away from the fenceline.

Anyway, any help would be appreciated on how to proceed.

Thanks in advance. :)

[Berta]

There should be more to James' decision here at hadit but I am having trouble with the search feature.

I know I interviewed him at SVR but forget when that was. The SVR archives should have any shows there with James.

When he got the decision he told me the BVA left out quite a bit of his evidence.I found that out in my BVA award as well. The BVA ,once they have enough to award, doesn't need to go into further details but it would be great if they did.

Here is his decision:

http://www.va.gov/vetapp09/Files5/0941553.txt

[Berta]

This is the second CONUS award for AO and might help someone:

http://www.va.gov/vetapp11/Files1/1108696.txt

AO Fort McClelland

The veteran was exposed to AO during a Tiger Village exercise.

[Capt.]

[

Hello CCC, Berta , Jbasser, Chuck , Boomer

First thank you all for your research and study to bring documents to the attention of our Veterans and their families. As many of you know my battle with AGENT ORANGE outside of Vietnam is proving quite interesting. Both Jerrel Cook and I were stationed at the infamous Fort Greely. And both of us are suffering from nearly identical same list of diseases . To name a few,

AO IHD, CAD, ATHERSOSCELROSIS, PERIPHERAL NEUROPATHY, RESTRICTED LUNG DISEASE/COPD, PULMONARY HYPERTENSION, INFLAMMATORY BOWEL DISEASE , DRY EYES, AND some others that I will leave off for now. 2 of our members have already passed away last year. One from this site and the radio show. Mr. Carlos Hope .

I am going to first say that James Cripps is the first award inside the CONUS for agent orange and DIRECT exposure issue not presumptive. This is the only sure way to make it work. Berta has posted another from Alabama . James was at Ft. Gordon Georgia which is on the list of known AO bases.

I have posted the list a couple of years ago here in the AO section of Hadit and now thru an all day search of the names that showed up on the Materials Training Seminar Conference from Sept 1973 . If you read the list with the names on it you will see only the location with no specifics. So that means you have to look up the location to find a more accurate description. What I have done is simply made it more accessible to at least know where each place is in the Unitied States. I would use wikipedia to fine tune all there is to know about the location.

OK ,,,so if you go to the list and see the number to the left you will see the name of the person to attend and the installation he is from . What I have done to make it alittle easier is put location to the number linking the person and location for to help. It took nearly 5 hours just for this part. Remember the DOD is not going to make it easy.

US ARMY MATERIAL COMMAND INSTALLATIONS AND SERVICES 10-14 SEPT 1973 Col. William Trefz(PLEASE SEE ATTACHMENTS)

1.Sunflower Army Ammunition, Johnson County, Kansas

2.Ft Monmouth, Monmouth County, New Jersey

3. Milan Army Ammunition, Tennesee

4. White Sands Missile Range , New Mexico

5.Riverbank Army Ammunition , Modesto , Calif. SUPERFUND

6.US Airforce Academy, Colorado Springs , Co

7.Jefferson Proving Grounds, Madision Indiana

8. Sierra Army Depot, Herlong , California, 50 miles northwest of Reno Nevada

9.Rock Island Arsennal , Rock Island , Ill On Mississippi River between Davenport Iowa and Rock Island Ill

10.Fort Richardson , Anchorage Alaska

11.Lexington Bluegrass Army Depot, Kentucky

12.Fitsimmons General Hospital, Aurora, Colorado

13.Sharpe Army Depot , San Joaquin , Calif SUPERFUND

14. Rock Island Arsenal , Rock Island Ill between Davenport Iowa and Rock Island on the Mississippi River

15.US Air Force Academy Colorado Springs, Colo

16. Sacremento Army Depot, Sacremento , Calif

17. Watervliet Arsennal, on the Hudson River , New York

18. Fort Wainwright, Alaska

19. Pueblo Army Depot, Pueblo , Colorado

20.Joliet Army Ammuntion Plant , Elwood , Illoinois

21. US Airforce Academy , Colorado Springs , Col

22 Fort Huachuca, Arizona

23. Pine Bluff Arsenal, Arkansas

24. Fort Monmouth , Oceanport, New Jersey

25.Sacremento Army Depot, Sacremento Calif

26 Iowa Army Ammuntion Plant, Des Moine County, Iowa

27. Jefferson Proving Ground, Madision, Indiana

28.Dugway Proving Ground , Utah

29. Anniston Army Depot Bynum Alabama

30. Charleston Army Depot , Charleston South Carolina

31. Granite City Army installation. Madison Count Illionois (Greater St. Louis Area)

32. Lone Star Ammuntion Plant, Bowie County , Texas SUPERFUND

33 Redstone Arsenal (Marshal Space Flight) Huntsville , Alabama

34. Fitzsimmons General Hospital , Aurora, Colorado

35 Picatinny Arsenal , Picatinny Lake , Lake Denmark, New Jersey

36. Franford Arsenal, Philadelphia, Pennsylvannia

37. Volunteer Army Ammunition, Chatanoga, Tenn

38. Aberdeen Proving Ground, Aberdeen , Maryland

39. Granite City Army Installation, Madison County, Illionois

40.US Air Force Academy. Colorado Springs Colorado

41.Kansas Army Ammuntion Plant, Parsons, Kansas

42. Fort Wainwright, Alaska (Central)

43. Savanah Army Depot , Savanah, Illionois on the Mississippi River

44. Letterkenny Army Depot, Franklin County Pennsylvania

45.FORT GREELY , Alaska

46. Anniston Army Depot , Bynum Alabama

47. Savannah Army Depot, Savannah Illionois

48. Franford Arsenal , Philidelphia , Pennsylvannia

49. Savannah Army Depot , Savannah , Illionois

50. Aberdeen Proving Grounds , Aberdeen Maryland

51. Cornhusker Army Ammunition , Grand Island , Nebraska SUPERFUND

52. Letterkenny Army Depot, Franklin County , Penn

53. Holston Army Ammunition , Kingsport , Tennessee

54. Seneca Army Depot, Seneca County, New York

55. Atlanta Army Depot , Atlanta, Georgia

56. Milan Army Ammunition. Milan ,Tennessee

57. Fort Carson, El Paso County , Colorado

58. Harry Diamond Labratories, Charles County , Maryland

59. Tooele Army Depot, Tooele County , Utah

60. Longhorn Army Ammuntion, Harrision County, near Marshal , Texas

61. Rock Island Arsenal between Davenport Iowa and Rock Island Illionois

62. Ravenns Army Ammunition, Windham Ravenna, Ohio

63. New Cumberland Army Depot. Harrisburg Pennsylvania

64. Natick Labratories , Natick , Massasschusetts

65. Rocky Mtn. Arsennal, Commerce City , Colorado

66. HQ US Army Alaska, Fort Richardson , Alaska

67. Holston Army Ammuntion , Kingsport , Tennessee

68. New Cumberland Army Depot, New Cumberland, Pennsylvannia

69.Harry Diamond Labratories , Maryland

70. Red River Army Depot, 19 miles west of Texarkanna , Texas

71. Badger Army Ammunition, Baraboo , Wisconsin

72. US Air Force Academy , Colorado Springs , Colorado

73. Newport Army Ammunition Plant , Terri Haute , Indiana (VX NERVE AGENT PRODUCTION SITE)

74.US Air Force Academy , Colorado Springs, Colorado

75. Rocky Mountain Arsenal, Denver Colorado.

76. US Army Tank Automotive , Warren , Michigan

77.Aberdeen Proving Grounds , Aberdeen, Maryland

78. Indiana Army Ammo Plant. Jeffersonville, Indiana

79. Lexington Bluegrass Army , Lexington Kentucky

80. US Air Force Academy, Colorado Springs, Colorado

81. US Air Force Academy , Colorado Springs, Colorado

82. Fort Wingate Depot, Gallup , New Mexico

83. Red River Army Depot, Texarkanna, Texas

84. Lima Army Modification , Lima , Ohio

85.US Air Force Academy, Colorado Springs, Colorado

86. White Sands Missile Range, New Mexico

87.US Air Force Academy , Colorado Springs, Colorado

88.Anniston Army Depot, Bynum , Alabama (VX SARIN AND MUSTARD GAS PRODUCTION PLANT)

89. Pueblo Army Depot, Pueblo , Colorado

90. Sierra Army Depot, Herlong , California

91.Tooele Army Depot, Tooele, Utah

92. HQ US ARMY ALASKA, FORT RICHARDSON , ALASKA

93.Twin Cities Army Ammo, Ramsey County, Minn

94. US Air Force Academy, Colorado Springs , Colorado

95. Lousiana Army Ammo Plant, Webster and Boosier Parrishes, Doyline, Louisiana

96. Fort Richardson, Alaska

97. Yuma Proving Grounds, Yuma , Arizona

98. Fort Huachuca , Arizona

99. Radford Army Ammo, Kingsport , Tennessee

100. US Air Force Academy , Colorado Springs , Colorado

101. Lake City Army Ammo, Independance , Missouri

102. Port Monmouth, New Jersey

103. Army Material and Mechanic Research, Watertown, Massuchusetts

104 Tobyhanna Army Depot , Tobyhanna, Penn

105.Alabama Army Depot, Anniston , Alabama

106. Fort Huachuca, Arizona

107. US Air Force Academy, Colorado Springs , Colorado

108. FORT GREELY , ALASKA

109. Yuma Proving Grounds, Yuma , Arizona

110. Fort Richardson, Alaska

111. US Air Force Academy, Colorado Springs , Colorado

112.Redstone Arsenal, Alabama

113. US Airforce Academy, Colorado Springs , Colorado

114. Savannah Army Depot, Savannah , Illionois

115. US Airforce Academy, Colorado Springs , Colorado

116. US Airforce Academy , Colorado Springs, Colorado

117. Aberdeen Proving Grounds, Aberdeen , Maryland

118. Charleston Army Depot, South Carolina

119.US Airforce Academy, Colorado Springs, Colorado

120. Tooele Army Depot, Tooele , Utah

I hope this will help to identify some other places not listed with DOD. It is also helpful because you may know some of these folks whose name is listed by the number. I knew Harold Teiken from Fort Greely and worked with him. Maybe this can reach some whose names are here to help them with any health related military exposure issue.

I will point out that the Fort Greely reservation and all EPA records are now joined into the Fort Wainwright , Alaska records. So the link that Boomer posted will not show that . This happened in 1995 when the US Army Strategic Missile Defense Command was titled and assigned to Fort Greely. A brand new agency and if you look at Fort Wainwright under the EPA superfund list in Boomers link you will see how the acreage jumped to nearly 900,000 acres. This is because when Fort Greely was give to Fort Wainwright jurisdiction is added 657,000 acres from Fort Greely. The Missile Defence command at Fort Greely was assigned about 1700-2000 acres for its agency and the resultive Interceptor Missile Program .....aka ......STARWARS.... So it will not be easy to find alot of the old contamination problems there at Fort Greely like before. However I would like to point out that you can still use the Alaska Dept. of Environmental Conservation records stored at the Fort Greely Restoration and Advisory board and other ADEC records listed all the Agent Orange site and storage with METHOD I II or III cleanup , remediation efforts and their controls on each site. This is very important.

I would also look at the new report I posted last month....the one that was taken down by ????? outside of Hadit and then mysteriously put back up. The 49th Missle Defense Command and the 2007 Environmental baseline report which shows the Agent Orange sensitive contaminated areas as well as the storage bldgs use. Very good close up shots and aerial/satellite photos with areas highlighted for areas of concern.

I would also like to point out that the presumptive list for most of the AO awards are for Vietnam boots on the ground with Neimers and BWN starting to gain some momentum.

James Cripps won his AO CONUS award at Fort Gordon , Georgia and I have his award . He won on DIRECT exposure and that is what I am following. I also have some of his evidence in my claim with letters from Dr. Arnold Shectner (SP) who is a leading researcher on Agent Orange.

I am thouroughly convinced as well as my fellow Fort Greely soldier , and SVR Host, Jerrel Cook that the Dept. of Defense will aggressively fight any EXPOSURE ISSUE from Fort Greely because of the sensitive nature of what Fort Greely is. It is , has been the most secret military installation in the world..... since the 1960s and nothing has changed. They will not let out all the test that have happened , including Project 112, the Nuclear Project regarding the SM1A reactor , now entombed????, and the Missile defense Work,,,,,, and of course the HAARP project and whatever else may arise. That is why there is now 900000 acres of land there to test without risk of harming large populations , unless you are a moose or caribou.

So for people like Jerrel and I who are still alive it is going to be a battle. Even with my strong IMO's, phyiscal evidence , SMR, and even VA medical opinions. If it was anyplace but Fort Greely ,,,,, there would be a chance. Hopefully because of how much time has gone by and we have lost a couple of Hadit Members who were stationed there , Jerrel and I hold on for proper decision. That is if we can live longer than they make us wait.

Also there is an award posted on an Agent Orange claim for direct exposure and it is stored here on our site under the Haynes pipeline information. It is the only one I know about at present. There are several more CONUS awards because of James Cripps efforts and we will see more BVA writeups with specifics , soon I hope.

So.... what I believe has been discussed in the years past. Berta and I have posted alot on this subject.

I would not try any presumptive exposure effort outside of Vietnam or now Thailand.

I would go with direct exposure.

You can use the research I aleady have shown here in Hadit library showing BVA WILL award Peripheral Neuropathy WITHOUT DIABETES II DIAGNOSIS. (See Dr. Durham and Dr. Yeng for 2 awards at BVA both DIRECT exposure) Notice key word, phrase, "remain latent for up to decades" taking out the acute and subacute ruling and using the chronic award. You will and may find it important to make sure you use these 2 awards for quoting in your individual case as they are precendent setting only if the Veteran brings it up to the court or VARO. Do not count on the VA to bring it up to you as precendent setting is not requirred in VA law.....I guess its not part of the real USA. I may post some of those here to help others if I feel better later. You can look them up under the AO issues and my content.

I wish all of our few surviving Agent Orange Veterans well and to please study and do your research before we all are gone and no one left to fight for . Thank you all for such great dedication to this wonderful place we Veterans have as a sanctuary. Your help and hard work is what makes this all possible and a place where we can gather , glean, share reports , knowledge to propel our claims in a faster , more accurate , and sensible method to achieve the elusive goal of Service Connected and the bounty of the FAIR award.

Once again thank you folks. HAPPY NEW YEAR,,,,,,, NEVER GIVE UP. God Bless, C.C. not to be confused with ccc

http://www.google.co...5iHMZEwPLpkUGoA 49th Missile Defense Command Environmental Baseline Report 2007

attachment=5092:AGENT ORANGE TRAINING MANUEL 1973 Fort Greely.pdf]

AGENT ORANGE TRAINING MANUEL 1973 Fort Greely.pdf

Agent Orange Herbicide Tests and Storage in the U_S_ - Office of Public Health and Environmental Hazards.htm

Edited January 10, 2012 by Capt.Contaminate

[carlie]

I know I interviewed him at SVR but forget when that was. The SVR archives should have any shows there with James.

Berta,

I'm pretty sure those interviews were when SVR was still hooked to stardust and I do not think

those archives moved over with Jerrel.

[Berta]

Yes- my shows with Cripps was at Stardust Carlie-you are right----- but Jerrel has a show listed in SVR hadit archives on July 13th a few weeks after the Joplin tornado with James Cripps( but maybe it was cancelled)?

[Capt.]

Hello CCC,

I have posted in below link that showed Fort Carson on the spraying seminar list from the 1973 list with people in attendance and the name of the post.

BINGO , you said your husband was stationed there ..... Can you prove that with Military Record or other evidence. Check the list again and see if he was somewhere else.

I also want to state that Peripheral Neuropathy does not have to meet the presumptive issue and that sometimes the DIRECT exposure issue should be used. I have post both Dr. Durham and Dr. Yu opinions , now in BVA records which were the IMO evidence needed to swing Benefit of a Doubt , 38 CFR , 3.102 to the Veterans favor. I am posting the BVA case showing the record and Dr. Yu s opinion. Read it very carefully.

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.

_________________________

ANDREW J. MULLEN

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

)

)

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

Once again these 2 important cases showed you do not need to have been treated in service , and the acute (one year) and subacute (two year) ruling.

I also want to show another case that was decided under the presumptive but it was pointed out in the BVA record that the DIRECT route of service connection can be used. Please see :

Citation NR. 0617909

Decision Date 06/19/06

Docket Number 04 -13 564

Under Section III Analysis

" Although the presumptive route to service connection is foreclosed, the veteran is certainly free to seek to service connection for peripheral neuropathy via the DIRECT route, by showing that his peripheral neuropathy is related to service." See Combee, supra.

If you read further on this awarded case, you will see that ...."The Board finds that the Medical opinions specific to the veterans case outweigh any general views expressed in the Statement of the National Academy of Sciences. Accordingly , with the evidence supporting the veteran's claim , service connection fro peripheral neuropathy is warranted."

I would like to encourage you about the importance of researching your husbands file and records and gather the evidence to propel his claim. Your main hurdle right now is to connect the dots and to get at least one or more Independent Medical Opinions , (IMO) that will state .....something like...... "It is my professional opinion that Mr________ disease stated or several diseases stated was AS LEAST AS LIKELY AS NOT CAUSED BY HIS EXPOSURE TO AGENT ORANGE/HERBICIDES while in service in the military at.....whatever places he was at.

It is important that the Medical examiners need ALL of your records , not just medical but also any environmental or Medical journal opinions or peer reviews that will link the disease to the chemical. It is also important to have your Medical examainer also specifically list those reports that he reviewed.

I hope this helps you and also know that there are some veterans that have been searching for ideas.

Please use Hadits wonderful historical research library here at the site. You can view past content such as from me or Berta or any others , or you can search the site for data .

Whatever you do please remember it takes time and hard work with patience. And above all please remember to NEVER GIVE UP. God Bless, C.C.

Dr. Durham AO BVA Case.htm