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