Citation Nr: 1037414 Decision Date: 10/01/10 Archive Date: 10/12/10 DOCKET NO. 05-01 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for toxic encephalopathy. 2. Entitlement to service connection for toxic bilateral peripheral vestibular loss. 3. Entitlement to service connection for toxin-induced loss of tolerance. 4. Entitlement to service connection for sensorimotor and peripheral neuropathy. 5. Entitlement to service connection for right frontal hypoperfusion. 6. Entitlement to service connection for cognitive disability. 7. Entitlement to service connection for dyssomnia. 8. Entitlement to service connection for toxin-induced sleep disorder. 9. Entitlement to service connection for immune system injury. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from June 1988 to October 1988, from December 16, 1990, to December 31, 1990, and from January 1991 to June 1991. She also had National Guard service from 1988 until her retirement in August 2008. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2001 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board previously remanded these issues for further development in August 2007. As the same evidence is applicable to all of the issues on appeal, the Board has addressed them under the same analysis. FINDING OF FACT Toxic encephalopathy, bilateral peripheral vestibular loss, toxicant-induced loss of tolerance, sensorimotor and peripheral neuropathy, right frontal hypoperfusion, cognitive difficulties, dyssomnia, toxin-induced sleep disorder, and immune system injury were manifested during active duty service. CONCLUSION OF LAW Toxic encephalopathy, bilateral peripheral vestibular loss, toxicant-induced loss of tolerance, sensorimotor and peripheral neuropathy, right frontal hypoperfusion, cognitive difficulties, dyssomnia, toxin-induced sleep disorder, and immune system injury were incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking entitlement to service connection for toxic encephalopathy, bilateral peripheral vestibular loss, toxicant-induced loss of tolerance, sensorimotor and peripheral neuropathy, right frontal hypoperfusion, cognitive difficulties, dyssomnia, toxin-induced sleep disorder, and immune system injury. The Veteran claims that these disabilities are due to exposure to jet fuel fumes during her active duty and her National Guard service. Service personnel records and National Guard records showed that the Veteran's military occupation specialty was jet engine mechanic and aircraft mechanic. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). As just noted, there is a distinction between disability related to disease in service and disability related to injury in service. The underlying contention in this case is that the Veteran suffers disabilities related to toxic exposure during service. Before proceeding further with the decision, the Board is of the opinion that the exposure to chemicals during service constituted an injury; therefore, there is no need to consider whether the Veteran's duty was active duty for training or inactive duty training. The evidence of record has been reviewed. In pertinent part, a July 1998 private medical report from Nathan Goldenthal, M.D. indicated that the Veteran was seen to determine the nature and extent of an environmental toxic exposure that had been ongoing for years. It was noted that the Veteran was an aircraft mechanic and had been exposed to jet fuel, specifically JP8, numerous aliphatic hydrocarbons, and numerous aromatic hydrocarbons. It was noted that her work as an aircraft mechanic had exposed her to jet fuel exhaust as well as spills and constant fumes. When she was stationed in Spain in 1991 for two months, JP8 was used in the space heaters provided; and sinus irritation and persistent infection immediately followed. It was noted that blood tests revealed abnormally high levels to certain chemicals. Further, an August 1999 treatment record from Barrow Neurological Group showed the following diagnoses: aliphatic hydrocarbon toxic exposure; toxic encephalopathy, improving; chronic fatigue; headaches with question of migraine component, dizziness, nonspecific by history; and chronic motion sensitivity. The examiner observed that the history of symptoms was compatible with organic solvent toxicity primarily with its manifestation in the nervous system. A follow up January 2001 treatment record from Barrow Neurological Group showed an impression of toxic encephalopathy related to aliphatic hydrocarbons; toxic peripheral vestibular loss related to hydrocarbon exposure; right frontal hypoperfusion, most likely related to number one; and chronic fatigue, quite possibly related to hydrocarbon exposure. A September 2001 National Guard treatment record indicated that the Veteran was an aircraft mechanic assigned to the 161st Air Refueling Wing. The medical summary was prepared in order to request a waiver for continued military service due to inability to receive any mobility required immunizations. The Veteran had been advised to not receive any vaccinations due to a diagnosis of exaggerated mediator response, probably due to hazardous chemicals. The Veteran reported that the onset of her problems was in March 1991 when she was deployed to Spain and lived in a tent heated with JP8. It was observed that her symptoms from toxic exposure and inability to receive vaccinations were a permanent defect. A private opinion from physician and Department of Defense sub- contractor, Gary C. Ridenour, M.D., is also of record. It indicated that the doctor had ten years of experiences with JP8 and was considered by O.S.H.A. to be an expert. After examining the Veteran, he attributed the following medical problems directly to JP8 exposure: toxic encephalopathy, sensorimotor and peripheral neuropathies, immune system suppression, vertigo due to vestibular damage, cognitive dysfunction, chronic sinusitis, depression, status post toluene, 3-methylpentane, n-hexane toxicities, abnormal PET scans and EEGs, toxicant indicated loss of tolerance of chemicals, Gulf War Syndrome by history, ten year exposure to multiple carcinogens, toxin induced sleep disorder, decreased cognitive abilities, poor short term memory and nystagmus. It was noted that the Veteran had markedly elevated levels of aliphatic hydrocarbons in her blood. These levels were so high that he could say without a doubt that the Veteran was a victim of JP8 induced toxicities. In September 2003, the Veteran was afforded a VA neurological examination. However, the claims file was not available for review. The examiner was unable to find any neurologic syndrome affecting the Veteran. The record also includes a November 2003 VA opinion from Nanette T. Auriemma, M.D., Director of Occupational Health and Environmental Medicine, to the effect that she agreed (after chart and literature review) that the Veteran's symptoms are related to the toxic effects of JP8 fuel. Dr. Auriemma continued that the symptoms were related to long-term exposure which the Veteran had in her career and were unlikely to be related to the short period she was on "active duty." However, the Veteran and her representative argued that exposure during the Veteran's reserve service should also be considered and documents have been submitted detailing the dates and periods of National Guard service. For example, in a March 2005 statement, the Veteran indicated that from February 1990 to February 2001, she performed 382 days of active duty for training and 503 days of inactive duty for training. Under the circumstances, the Board remanded these issues so that a clarifying opinion from Dr. Auriemma (or other appropriate medical doctor) could be obtained. The Board also directed the RO to review the claims file and prepare a clear written summary of fuel exposure during the Veteran's period of active duty, during National Guard duty, and during periods of exposure during civilian employment. On remand, the RO requested the Veteran's service personnel records from the National Personnel Records Center (NPRC). However, in January 2009, the NPRC indicated that these records were not available at the location where the request was sent and suggested a request be sent to another location. Subsequently, in April 2009, the RO sent a request for records to the Arizona State Adjutant. That same month, the RO sent a request to the Veteran seeking information on fuel exposure during civilian employment. The Veteran responded in May 2009. She estimated that because most of her civil service employment at the Air Refueling Wing with the Arizona National Guard was performed concurrently with her military service, her exposure to fuel was 75 percent in civilian employment and 25 percent in active military service. She further summarized her fuel exposure and included dates of her concurrent military service. Her list showed approximately 325 days of active duty from June 1989 to September 1997. The Veteran's Reserve records from the State Adjutant were also received and associated with the claims file. These records outlined the Veteran's active duty for training and inactive duty for training dates. These records appeared to show approximately 897 days of active duty for training and inactive duty for training from February 1988 to February 1998. It appears that in 1998, the Veteran was transferred to a desk job due to her health issues. Unfortunately, despite the Board's directive in its remand, it seems that the RO failed to prepare a clear written summary of fuel exposure during the Veteran's period of active duty, during National Guard duty, and during periods of exposure during civilian employment On remand, an October 2009 VA opinion was prepared by Alan I. Frolich, Clinical Director of Administrative Medicine. The claims file was reviewed. The examiner acknowledged the Veteran's summary of her fuel exposure and noted that her provided percentages as to the split between civilian and military service was her best estimate. He noted that he could find no summary provided by the RO as directed in the Board remand. The examiner indicated that as he was not a toxicologist, he must defer to Dr. Auriemma's opinion that the Veteran's multiple symptoms were related to the toxic affects of JP8. He indicated that he found no other information that bore directly on the issue of military versus civilian exposure to jet fuel or other potentially toxic agents. In his opinion, based on Dr. Auriemma's opinion, it was at least as likely as not that the Veteran's multiple disorders related to the cumulative effect of exposure to jet fuel and possibly other toxic agents in both her civilian and active duty/National Guard duties. It was really not possible to separate causality between civilian and active duty/National Guard, because when there is ongoing toxic exposure, it is the cumulative effect rather than the separate effect of one group of exposures versus another that is generally the issue. Furthermore, as discussed above, the extent of active duty/National Guard versus civilian exposure had not been well summarized, except in the Veteran's own letter, which the examiner could not fully interpret. Based on her statement that exposure was 75 percent in civilian service and 25 percent in military service (if it was being interpreted correctly), it was more likely than not that the civilian fuel exposure played a greater role in the cumulative toxicity, but further delineation was not possible without resorting to speculation for the reason given above. Therefore, based on the evidence of record, the Board finds that service connection for toxic encephalopathy, bilateral peripheral vestibular loss, toxicant-induced loss of tolerance, sensorimotor and peripheral neuropathy, right frontal hypoperfusion, cognitive disability, dyssomnia, toxin-induced sleep disorder and immune system injury is warranted. It appears to be an undisputed fact that the Veteran was exposed to toxic jet fuel during her active duty service and National Guard service. Further, a VA medical opinion determined that the Veteran's disabilities were due to the toxic effects of JP8 fuel. The primary question is whether the disabilities were more likely due to exposure during her civilian employment. Nevertheless, the most recent examiner indicated that it was not possible to separate causality in this way as the exposure had a cumulative effect rather than a separate effect. He also opined that it was at least as likely as not that the Veteran's multiple disorders related to the cumulative effect of exposure to jet fuel and possibly other toxic agents in both her civilian and active duty/National Guard duties. Again, the Veteran's Reserve records did document approximately 900 days of active duty for training and inactive duty for training over a 10-year period. Therefore, given that the medical evidence does show that the Veteran's exposure to jet fuel during her active duty and National Guard duties contributed to the development of these disabilities to a certain extent, the Board finds that when resolving the benefit of the doubt in favor of the Veteran, service connection is warranted. 38 U.S.C.A. § 5107(b). The issues listed on the first page of this decision have been listed as such so as to be consistent with the description of the issues by the RO through the claim process. The RO will determine the manner in which the disabilities are described and treated for rating purposes. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefits sought by the Veteran are being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). By letter dated in March 2006, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. She will have the opportunity to initiate an appeal from these "downstream" issues if she disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection for toxic encephalopathy, bilateral peripheral vestibular loss, toxicant-induced loss of tolerance, sensorimotor and peripheral neuropathy, right frontal hypoperfusion, cognitive disability, dyssomnia, toxin-induced sleep disorder and immune system injury is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs