Citation Nr: 1047932 Decision Date: 12/27/10 Archive Date: 01/03/11 DOCKET NO. 08-18 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for psoriatic arthritis of multiple joints, as due to in-service herbicide exposure and malathion exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shabnam Keyvan INTRODUCTION The Veteran served on active duty from January 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from December 2005 and December 2006 rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the benefit sought on appeal. The Veteran appealed that decision to the BVA, and the case was referred to the Board for appellate review. The Board further observes that, following the issuance of the statement of the case in April 2005, the Veteran submitted additional argument that was not previously considered by the RO. In the December 2010 Appellant's Brief, the Veteran, through his representative, waived the RO's initial consideration of this additional evidence/argument. Therefore, the Board will proceed with appellate review of this appeal with consideration of this newly obtained information. This appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In his August 2005 claim, the Veteran stated that he was exposed to Agent Orange and the chemical solution malathion while serving as a K9 Sentry Dog Handler in the Republic of Vietnam from September 1970 to June 1971. He explained that Agent Orange was used around the "Kennel area" during the spring monsoons to control the vegetation. He also claims that the sentry dogs for whom he was responsible for handling were dipped in malathion on a bi-weekly basis to control the ticks picked up during the nightly patrols. According to the Veteran, he became sick during this time period (alternating between chills and fever-like symptoms) and was unable to perform his daily duties. He contends that he began experiencing problems with his joints shortly after his separation from active duty, that his condition has progressively worsened over the last thirty years, and that his condition is due to his herbicide and malathion exposure in service. In addition, the Veteran maintains that he first began experiencing problems with his joints within a year or so of being discharged from active duty. According to the Veteran, several years after his return from Vietnam, he began experiencing problems in his right wrist and left knee. He explains that he had to have fluid drained from his knee on several occasions, that he underwent a wrist fusion, and that he underwent surgery on both shoulders as well as his right foot. See Veteran's statement, dated in July 2006. Service treatment records are predominantly clear for any findings, notations, treatment for or diagnosis of arthritis or any type of joint condition. A February 1970 sick call notes reflects that the Veteran presented to the clinic with complaints of pain in his lower back. The Veteran was also seen periodically at sick call between March 1970 to August 1970 for various health complaints, to include a fever, cold, earache and ear infection. The clinical evaluation of the Veteran's feet, lower extremities and upper extremities was shown to be normal during his January 1972 separation examination, and he did not report having any cramps in his legs, skin diseases, or swollen or painful joints. The Veteran also denied any bone or joint deformity and did not indicate having any foot trouble. Post-service treatment records reflect a diagnosis of psoriatic arthritis. The earliest post-service treatment record reflecting joint pain is dated in April 1974, at which time the Veteran presented at a private treatment facility with complaints of a "sore r[ight] wrist [during the] last three weeks." During a general VA examination conducted in July 1981, the examiner noted the Veteran's complaints of stiffness in both wrist joints as well as the left shoulder. The physical examination of the Veteran resulted in an impression of bursitis of the left shoulder and ganglion of the right wrist. The Veteran also underwent an X-ray of his right wrist, the findings of which reflected post-traumatic arthritis. In a May 1995 clinical note, the Veteran's physician, Dr. J.F., indicated that the Veteran had a history of rheumatologic problems which began around 1973 during which he noticed pain and swelling in his right wrist. Dr. J.F. further wrote that the Veteran began experiencing effusion of the left knee in 1975 and 1984, necessitating aspiration of the knee. It was around this time that the Veteran started to notice joint pain involving multiple other joints, to include the shoulders, elbows, both wrists, hips, knees, ankles and the metacarpophalangeal and proximal interphalangeal joints. The Veteran also reported a history of neck pain. According to Dr. J.F.'s report, the Veteran was seen by a rheumatologist in 1984, but was never provided with a clear diagnosis as to what was wrong with his joints. It was not until he was referred to Dr. J.G. in 1986, and subsequently underwent numerous and extensive tests over the course of several years, that he was diagnosed with psoriatic arthritis. Indeed in a January 1988 letter, the Veteran was described as having a history of psoriatic arthritis for several years. The remainder of the Veteran's post-service treatment records dated from May 1991 to October 2007 reflect his treatment for and diagnosis of arthritis associated with psoriasis, as well as the various surgical procedures he underwent on his right wrist, right shoulder, and feet due to this disorder. The Veteran has also submitted several "buddy" statements from fellow servicemen who served alongside him in Vietnam. In one of the statements submitted in September 2006, the process of cleaning the dog in malathion solution was described in full detail. See Statement of A.G., dated September 2006. According to this statement, as a result of their mission and duties as dog handlers, the dogs required treatment with the chemical solution Malathion to kill ticks, fleas and parasites that were part of the area. The dogs were dipped at least once a week into the solution, and upon immersion, the dog handler became soaked as well. In addition, both the dog and dog handler were exposed to Agent Orange, because the engineers mixed Agent Orange with diesel fuel and burned the areas around the compound to facilitate easier use and patrol functions of the Sentry dogs. Another one of the Veteran's fellow servicemen relays that his military occupation was that of dog handler, and their dogs were subjected to severe tick infestation resulting in the dogs being dipped in malathion solution and water. See Statement of J.B., dated August 2006. According to this statement, the initial splash associated with dipping the dogs into the mixture resulted in the dog handlers getting covered with some of the mixture, and even after drying off, they were still left "with a film of malathion on [their] fatigues and skin." This description was reiterated in another buddy statement, in which the Veteran's fellow serviceman, J.G., recalled that the dog handler always getting soaked with solution after dipping the dog into malathion. It was further added that Agent Orange was stored on the base and "was sprayed around the perimeter where [they] walked." See Statement of J.G., dated August 2006. With regard to the Veteran's lay statements, the Board notes that competent lay evidence is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence is evidence provided by a person who has personal knowledge (that is, that he/she actually observed; derived from his/her own senses) of facts or circumstances and conveys matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Given the nature of the Veteran's condition and its observable symptoms, the Board finds that the Veteran is competent to report that he has suffered pain in his joints since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In addition, based on the evidence submitted and lay assertions provided in support of his claim, the Board finds the Veteran credible with respect to his assertions. The Veteran has also submitted several private medical opinions from Dr. J.G. In the November 2006 opinion, Dr. J.G. discusses whether the Veteran's exposure to malathion could stimulate "immune mediated problems" which may have been a triggering factor with regard to the Veteran's psoriasis associated arthritis. According to Dr. J.G., clinical and laboratory evidence shows that malathion "is extremely well absorbed through hands, skin as well as inhalation," that malathion can cause "mast cell degranulation" and can interfere with "macrophage function which leads to an abnormality in cell mediated immunity." Dr. J.G. states that, while no direct link has been established between malathion exposure and psoriasis or other immune diseases, "one must be concerned that the extensive exposure was a triggering factor in the development of his persistent and unfortunately disabling autoimmune disease." In an October 2007 opinion, Dr. J.G. discusses how new data is appearing with regard to the epigenetic effect of defoliants and pesticides and that such effects have a latency of years and could raise risks in subsequent generations. According to Dr. J.G., "whereas there is no direct link with his exposure to malathion to his psoriasis or his immune disease, we must be concerned that this disabling immune disease did have a trigger which we will discover in the near future." The Veteran has not been afforded a VA examination in connection with this claim. In this regard, the Board notes that the Veteran's DD 214 indicates that his military occupational specialty was that of military policeman and that he was awarded the Vietnam Service Medal (VSM) as well as the Republic of Vietnam Campaign Medal (RVNCM), and had 10 months and 17 days of foreign and/or sea service. In the April 2008 Statement of the Case (SOC), the Decision Review Officer (DRO), upon reviewing the Veteran's service treatment records and supporting evidence, conceded the Veteran's herbicide and malathion exposure. The Board agrees. As the Veteran served in the Republic of Vietnam during the Vietnam era, he is presumed to have been exposed during service to certain herbicide agents, including Agent Orange. Further, the Board finds competent and credible the lay evidence of record with regard to the Veteran's exposure to malathion during his service in Vietnam. Although the Veteran's psoriatic arthritis of the multiple joints is not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e) (2010); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange.) As previously noted, the evidence of record does not include a medical opinion based on a complete review of the claims file specifically addressing whether the Veteran currently has psoriatic arthritis of the multiple joints, which is or can be causally or etiologically related to his herbicide exposure and/or malathion exposure in service. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, the evidence of record indicates that the Veteran has a current diagnosis of psoriatic arthritis involving multiple joints in his body, and the Veteran is presumed to have been exposed to Agent Orange and malathion in service. Service treatment records reflect that the Veteran was seen on occasion at sick call for cold and flu like symptoms. Indeed, Dr. J.G. suggests that that malathion could have been a contributing factor in the development of the Veteran's autoimmune disease. No medical opinion concerning the cause of the Veteran's autoimmune disorder, to include his psoriatic arthritis, has been provided. Therefore, the Board finds that a VA examination and medical opinion are necessary for determining the nature and etiology of any autoimmune disorder, including psoriatic arthritis, that may be present. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination for the purpose of ascertaining the nature and etiology of any psoriatic arthritis of multiple joints that he may have. The claims file and a copy of this REMAND must be made available to the examiner for review, and the examination report should reflect that the claims file was reviewed in conjunction with the examination. All indicated tests should be performed, and the findings should be reported in detail. If the Veteran is found to have psoriatic arthritis of any joint(s), the examiner should comment as to: a. Which joints the psoriatic arthritis has affected; and b. The likelihood (likely, unlikely, or at least as likely as not) this disability is causally or etiologically related to his conceded herbicide and/or malathion exposure in service. In answering this question, the examiner should specifically address the November 2006 and October 2007 medical opinions submitted by Dr. J.G. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. When the development requested has been completed, readjudicate the issue of entitlement to service connection for psoriatic arthritis of psoriatic arthritis of multiple joints, as due to in-service herbicide exposure and malathion exposure. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is certified to the Board for appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2010). The Veteran has the right to submit additional evidence and argument on the matter that 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ THERESA M. CATINO Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).