Citation Nr: 0902475 Decision Date: 01/23/09 Archive Date: 01/29/09 DOCKET NO. 02-00 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for sarcoidosis, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: John C. Betts, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from July 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 2001 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Wichita, Kansas. As procedural history, the Board notes that by a rating decision dated in January 2000, the RO denied the veteran's initial claim for service connection for sarcoidosis. He was notified of this determination and of his right to appeal by a letter dated later that month, but a timely appeal was not received. In December 2000, the veteran submitted a statement in which he requested that his claim be "re- opened" on the basis of new information. The RO considered this statement to be an attempt to reopen the claim for service connection for sarcoidosis. Even if VA had concluded that the December 2000 statement constituted a timely notice of disagreement with the January 2000 determination, the substantive appeal received in January 2002 could not be deemed to be timely as to the January 2000 rating action as it was received more than 60 days following issuance of the September 2001 statement of the case. See 38 C.F.R. §§ 20.200, 20.201, 20.202 (2004). The rating action dated in May 2001 concluded that additional evidence had been received which was new and material, sufficient to reopen the claim, but denied the reopened claim on the merits. Although the RO determined that new and material evidence had been received to reopen the claim for service connection, the United States Court of Appeals for Veterans Claims (Court) has held that the Board is obliged to determine in the first instance whether there is new and material evidence to reopen the claim, regardless of the RO's action. Barnett v. Brown, 8 Vet. App. 1 (1995); Wakeford v. Brown, 8 Vet. App. 237 (1996). The Board issued a decision in this matter in March 2005, which reopened the claim for service connection, and denied the reopened claim of entitlement to service connection for sarcoidosis. The veteran appealed that determination of the Board to the Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in December 2007, the Court upheld the Board's interpretation of the procedural history as reflected in the paragraph directly above, but for other reasons vacated and remanded the Board's decision to the extent the Board had denied the reopened claim of entitlement to service connection for sarcoidosis. The veteran provided testimony at an August 2002 Board hearing before the undersigned Veterans Law Judge. During the hearing before the undersigned in August 2002, the veteran provided testimony concerning the issue of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 (West 2002) for sarcoidosis based on additional disability due to Department of Veterans Affairs (VA) treatment. See August 202 Board hearing transcript (Tr.) at 2.) However, as the Board grants entitlement to service connection for sarcoidosis herein, compensation for all aspects of this disability will now be warranted, and the claim pursuant to 38 U.S.C.A. § 1151 (West 2002) is rendered moot. In a statement dated in November 2003, the veteran referred to a claim for service connection for peripheral neuropathy, to include as secondary to exposure to Agent Orange. Since this matter was not developed or certified for appeal, it is referred to the RO for appropriate action. FINDING OF FACT The competent medical evidence is at least in equipoise as to whether the veteran's sarcoidosis began during active service or is related to exposure to Agent Orange or other chemicals during active service. CONCLUSION OF LAW Sarcoidosis was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(e) (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). As discussed in detail below, sufficient evidence is of record to grant this claim. Therefore, no further notice or development is needed with respect to this matter. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; 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 disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2002). Moreover, the diseases listed at 38 C.F.R. § 3.309(e) shall be presumed to be due to exposure to such herbicide agents if they 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 must have become manifest to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). The diseases listed in 38 C.F.R. § 3.309(e) are chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and several forms of soft-tissue sarcoma. In addition, the United States Court of Appeals for the Federal Circuit has determined that a veteran is not precluded by presumptive laws and regulations from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In other words, the fact that the veteran did not meet the requirements of 38 C.F.R. § 3.309 does not in and of itself preclude the appellant from establishing service connection as he may, in the alternative, establish service connection by way of proof of actual direct causation, showing that the veteran's exposure to Agent Orange during service caused his sarcoidosis, or that his sarcoidosis otherwise began during service or is related to some incident of service, under the general provisions of 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Analysis The veteran has not argued, and the evidence does not otherwise establish, that the veteran's sarcoidosis may be presumed to be related to exposure to Agent Orange in service. Sarcoidosis is not one of the listed conditions for which service connection may be presumed as due to exposure to Agent Orange. See 38 C.F.R. § 3.309(e). However, as the veteran had service in Vietnam during the Vietnam Era, the Board will presume that the veteran was exposed to Agent Orange in service. 38 U.S.C.A. § 1116(f) (West 2002). The Board will consider the veteran's claim for service connection for sarcoidosis, to include as due to exposure to Agent Orange, on the basis of whether there is proof of actual causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The service treatment records are negative for complaints or findings concerning any lung disability or sarcoidosis. On the separation examination in January 1971, the lungs and chest were evaluated as normal. A chest X-ray study was normal. VA medical records dated in 1988 have been associated with the claims folder. A chest X-ray study in May 1988 revealed patchy infiltrates in both lungs. It was indicated that this might be due to chronic pleural thickening. A CT scan of the chest in May 1988 revealed that bilateral linear nodular infiltrates were present in the perihilar distribution in addition to alveolar nodular infiltrates in the perihilar distribution. The veteran was hospitalized by the VA in May 1988. The hospitalization discharge summary indicates that during the course of the hospitalization, the veteran had multiple skin tests and all were negative. Sputum was negative for malignant cells. At the time of discharge, serum protein electrophoresis had shown a normal pattern which the reporting physician opined seemed to rule against sarcoidosis. The diagnoses were X-ray densities of the left lung, asymptomatic, and Agent Orange exposure. Private medical records disclose that the veteran was seen in October 1998. It was reported that he was employed for a plastic containers company, and had a history of exposure to tetrachlorethylene, and probably some asbestos. It was also indicated that he was around the effect of Agent Orange in Vietnam. It was reported that the veteran had been examined in 1987 and that abnormal lung findings had been shown at that time. Following physical examination, the pertinent impressions were bilateral alveolar-type infiltrate/mass with air bronchogram, consistent with an alveolar sarcoid, lymphoma or a granulomatous process involving the peribronchial lymphatics; and Agent Orange exposure. The examiner stated that the calcification of the abnormalities brought up the chronicity of the process, and he also noted that it was difficult to correlate the findings of ten years earlier with what was present now, but that they might be related. A pulmonary function study in November 1998 was consistent with pulmonary sarcoidosis. Additional private medical records confirm the diagnosis of sarcoidosis. The veteran was afforded a respiratory examination by the VA in November 1999. The claims folder was reviewed in conjunction with the examination. It was reported that the veteran was first evaluated for cough symptoms in 1971, after his discharge from service, but that he was not given a diagnosis. No chest X-ray studies from that period were available. It was also noted that the veteran had undergone another evaluation in 1988, but no diagnosis was made and no treatment initiated. It was further noted that the veteran saw his primary physician in October 1998 for pains that were thought to be from costochondritis. A chest X-ray study at that time demonstrated hilar adenopathy. Following an examination, the impression was sarcoidosis. The examiner reviewed X-ray studies from 1988, 1998 and 1999. He stated that "[a]s there is also a chest x-ray report which commented on bilateral adenopathy in 1988, it most assuredly was present at that time as well. It is difficult to speculate whether the [veteran] had sarcoid while in the military, and due to the lack of chest x-ray reports from that time period, it is difficult to state whether adenopathy was present at that time. As sarcoid can be present, and the patient asymptomatic, it is not at all unlikely that it was present at that time as well. However, the etiology of sarcoid continues to be unknown, and there is no evidence that it is due to chemical exposure. Therefore, it is unlikely that this [veteran's] sarcoidosis is due to his military service." (Emphasis added.) In a statement dated in September 2001, E.J.F. related that he had been the veteran's commanding officer in Vietnam. He described the veteran's service in the Republic of Vietnam and indicated that the veteran had been involved in combat operations and the repair of river patrol boats hostile waters. The letter incorrectly stated that the veteran was considered 100 percent disabled by VA as the result of his exposure to Agent Orange. The purpose of the letter, addressed to the Chief of Naval Operations, was to recommend the veteran for the Bronze Star Medal. Voluminous medical records have been associated with the claims folder subsequent to the January 2000 RO determination. The pertinent evidence will be summarized below. In December 2000, the VA physician who conducted the November 1999 VA examination, responded to a letter from the veteran. He noted that he was familiar with the articles the veteran had submitted to him, but commented that they only suggested theories as to possible etiologies of sarcoidosis and other diseases, but did not provide any solid evidence of the etiology at this time. In a letter to the veteran dated in November 2000, a physician, a Professor at the University of Kansas Medical Center, stated that it was not known if TCDD can or cannot cause sarcoidosis in humans. He indicated that relatively low doses of TCDD stimulated the immune system. The physician noted that sarcoidosis had an immunological component of unknown etiology and that additional testing was needed to consider the possibility of TCDD causing an autoimmune disease. In a treatment note dated in August 2002, C.E. Schroder, M.D., a consultant in pulmonary medicine, in responding to correspondence from the veteran, opined that the diagnosis of sarcoidosis was still correct "although admittedly he apparently developed his symptoms initially in 1988, the diagnosis probably was delayed considerably." The treatment note was written in response to concerns from the veteran that he had asbestosis rather than sarcoidosis. In a statement dated in January 2003, M.S. Box, M.D., reported that the veteran was under his care for the treatment of sarcoidosis. He indicated that he reviewed the veteran's previous medical records. He opined that based on the veteran's history, it was as likely as not that sarcoidosis was related to Agent Orange exposure in service. He added that there have been documented cases of patients exposed to Agent Orange developing autoimmune conditions and he believed that was the case for the veteran. In a statement dated in August 2004, E. Friedlander, M.D., the Chair of Pathology of the Kansas City University in Medicine and Biosciences, noted that the veteran reported he had been diagnosed with sarcoidosis. He stated that there was no epidemiologic link between Agent Orange and sarcoidosis. He added that he would not dismiss it as a possibility. He reported that he reviewed the literature database from NIH and found that there was no published study one way or the other. He related that sarcoidosis was probably a result of a poorly understood immune disturbance. He stated that he thought a link was possible. The veteran was again examined by the VA in October 2004. The examiner noted that he had reviewed the claims folder. It was indicated that the veteran reported that a definitive diagnosis was not made in 1988 and that no treatment was undertaken until 1998 when the veteran had chest pain that was diagnosed clinically as costochondritis. It was noted the diagnosis of sarcoidosis was subsequently made on the basis of additional testing. Following current physical examination, the diagnosis was pulmonary sarcoidosis. The examiner noted that the veteran brought a letter from Dr. Box who felt there was a cause-and-effect relationship between Agent Orange exposure and the veteran's sarcoidosis. The VA examiner opined that it was at least as likely as not that the veteran's sarcoidosis was related to his exposure to Agent Orange. This was based in part on the fact that Dr. Box concurred with this conclusion, and the letter from Dr. Friedlander. He added that it was felt that sarcoidosis represents an autoimmune disorder and Agent Orange has been associated with autoimmune disorders. 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 61 Fed. Reg. 57,586-57,589 (1996). In January 2009 the Board received from the veteran a document from the Veterans Heath Administration, dated January 9, 2007, and entitled Under Secretary for Health's Information Letter [--] Sarcoidosis. As background, the document described sarcoidosis as an idiopathic, multi-system disorder, which is characterized by noncaseating granulomas. The document further states that although the specific causes of sarcoidosis have not been confirmed the disease is thought to result from a complex interaction of genetic factors and the environment. Plausible precipitating causes among susceptible individuals were listed as including exposure to: 1) environmental chemicals; 2) viruses; 3) bacteria; 4) molds; 5) certain industrial dusts. The document includes a section entitled "Studies of Sarcoidosis Among Military Populations." It is stated in the letter that "recent research by the Navy and Centers for Disease Control and Prevention (CDC) identified a higher-than expected number of sarcoidosis cases in military personnel who served aboard aircraft carriers. The document cites several different types of studies with respect to development of sarcoidosis, and concludes that none of the studies of exposures has been conclusively demonstrated to cause sarcoidosis, and notes by way of illustration that, unexpectedly, teachers have been found to be at increased risk for sarcoidosis. This section of the report concludes that "[i]n summary, studies of the etiology of sarcoidosis in civilian populations and among Navy personnel have been inconclusive and have not answered important questions as to whether sarcoidosis is caused by specific occupational exposures during military service." The document specifically notes that "[w]hen sarcoidosis is diagnosed more than 1 year following discharge from the military, entitlement to service-related disability compensation may also be established on an individual basis if medical evidence establishes a link between current disability and military service." Pursuant to Section 3 of the Agent Orange Act of 1991, Pub. L. 102-4, No. 105 Stat. 11, the Secretary of the VA entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. The NAS was required to submit reports of its activities every two years for a ten-year period. Based on the most recent report, the Secretary concluded that the credible evidence against an association between autoimmune disorders and herbicide exposure outweighs the credible evidence for such an association, and determined that a positive association did not exist. See 72 Fed. Reg. 32,395 (June 12, 2007); see also 68 Fed. Reg. 27,637 (May 20, 2003). The Board has reviewed the most recent underlying report of the National Academy of Sciences. That report discusses conflicting evidence as to whether exposure to Agent Orange may lead to autoimmune disease, and noted that "[o]n the basis of its evaluation of the evidence reviewed here and in previous VAO reports, the committee concludes that there is inadequate or insufficient evidence to determine whether there is an association between exposure to the compounds of interest and immune suppression, allergy, or autoimmune disease." See National Academy of Sciences, Veterans And Agent Orange: Update 2006, pp. 618-620. The Board acknowledges that sarcoidosis has been categorized by many medical authorities as an autoimmune disorder. However, after review of the claims files, the relevant Federal Register publications indicating the Secretary's findings, and the underlying reports of the National Academy of Sciences, the Board is persuaded that to unequivocally categorize the veteran's sarcoidosis as an autoimmune disorder and rely on the studies of the National Academy of Sciences and conclusions of the Secretary to thereby find that there is no association between this veteran's active service and his sarcoidosis is not the most appropriate mode of analysis for this case. In this regard, the January 9, 2007, publication from the Under Secretary for Health on sarcoidosis does not refer to it as an autoimmune disorder, and reflects a high degree of medical uncertainty and complexity on several points regarding classification and etiology. Further, Under Secretary for Health's report lists environmental chemicals as a possible cause of sarcoidosis in susceptible individuals. As one might expect based on the foregoing, the medial opinion evidence in this matter does not reflect a high degree of medical certainty and reflects varying opinions as to the nature and etiology of the veteran's sarcoidosis and sarcoidosis in general. A November 1999 VA examiner opined on the one hand that the etiology of sarcoid continues to be unknown, and there is no evidence that it is due to chemical exposure, so that it was therefore unlikely that the veteran's sarcoidosis is "due to" his military service (quotations added); yet, on the other hand, after a close review of X-rays that in his opinion reflect that the veteran definitely had sarcoidosis in 1988, he stated further that it was "not at all unlikely" that it was present during veteran's time in the military as well. Given that the veteran is presumed to have been in sound condition upon entry into active service, see 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304(b), a closely reasoned medical opinion that it is "not at all unlikely" that the veteran may have had sarcoidosis during military service constitutes significant evidence for the grant of service connection. Additional medical opinions received are similarly equivocal but are generally favorable, and in some cases appear to be rendered by physicians expert in their fields. In a statement dated in August 2004, E. Friedlander, M.D., the Chair of Pathology of the Kansas City University in Medicine and Biosciences, related that sarcoidosis was probably a result of a poorly understood immune disturbance, and that a link between the veteran's exposure to Agent Orange and his sarcoidosis was possible. In January 2003, M.S. Box, M.D., reported that the veteran was under his care for the treatment of sarcoidosis, and opined that based on the veteran's history, it was as likely as not that sarcoidosis was related to Agent Orange exposure in service. He added that there have been documented cases of patients exposed to Agent Orange developing autoimmune conditions and he believed that was the case for the veteran. Similarly, an October 2004 VA examiner opined that it was at least as likely as not that the veteran's sarcoidosis was related to his exposure to Agent Orange. Based on the foregoing, the Board finds that the competent medical evidence is at least in equipoise as to whether, under the very specific facts of this case, the veteran's sarcoidosis is related to his exposure to Agent Orange in Vietnam. Further, there is competent medical opinion evidence that it is "not at all unlikely" that the veteran had sarcoidosis during his period of active military service. Additionally, there is evidence from the Under Secretary for Health that some Navy personnel have experienced a higher than expected incidence of sarcoidosis, though the reason for the association is not at all clear, and that sarcoidosis may be attributable to exposure to environmental chemicals in susceptible individuals. As so little is understood about sarcoidosis, and the specific facts of this case have been as thoroughly developed as possible, there appears no reasonable possibility that further development of this claim would better resolve the matter on appeal. As such, under the current state of the record and the unique facts of this case, the Board finds that there is at least an approximate balance of positive and negative competent medical evidence in this matter. See 38 C.F.R. § 3.102. Accordingly, entitlement to service connection for sarcoidosis is warranted. ORDER Entitlement to service connection for sarcoidosis is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs