Citation Nr: 1335622 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-43 263 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to service connection for cerebellar ataxia, to include as secondary to herbicide (Agent Orange) exposure. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1970, to include service in the Republic of Vietnam. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the RO. FINDINGS OF FACT The currently demonstrated cerebellar ataxia is shown as likely as not to be due to the Veteran's presumed exposure to herbicides while performing active service in the Republic of Vietnam. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by cerebellar ataxia is due disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran contends that he is entitled to service connection for cerebellar ataxia due to exposure to herbicides while in Vietnam. Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a 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 current disability. See 38 C.F.R. § 3.303 (2013); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). The medical records establish that the Veteran has spinocerebellar ataxia. For example, at his May 2013 VA examination, diagnosis was that of spinocerebellar ataxia. The Veteran served from December 1967 to March 1970. This included service in the Republic of Vietnam. As such, he is presumed to have been exposed to herbicides, to include Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Cerebellar ataxia cannot be presumed to be service connected, because it is not on the list of diseases presumptively connected to Agent Orange exposure. 38 C.F.R. § 3.309(e). Nevertheless, herbicide exposure can be considered in establishing service connection on a direct basis. Finally, there is persuasive evidence that the Veteran's cerebellar ataxia is related to his exposure to herbicides in service. In a December 2009 letter, the Veteran's private neurologist, Dr. D.K., opined that extensive medical testing had revealed no evidence that the Veteran's cerebellar ataxia was hereditary. Dr. D.K. further opined that, because no other cause had been found, it was as likely as not that cerebellar ataxia was caused by the Veteran's exposure to Agent Orange while on active service in the Republic of Vietnam. Also of record are November 2008 lay statements from the Veteran's mother, brother, and two sisters, all of whom assert that no other member of their family had symptoms of or a diagnosis related to cerebellar ataxia. Hence, the available record shows no obvious evidence of a familial disorder. In contrast, following VA examination in May 2013, the examiner opined that it was less likely than not that the cerebellar ataxia was related to service, to include due to presumed exposure to Agent Orange and other herbicides while serving in the Republic of Vietnam. He noted that cerebellar ataxia did not have a presumptive connection with herbicides. The VA examiner advised that the Veteran's condition had been investigated and thus far a known genetic or other cause had not been found. He noted that it was possible to have spinocerebellar ataxia through exposure to certain toxins. The VA examiner opined that, after reviewing Up To Date, Pub Med and standard neurology, there was no described correlation with Agent Orange, and it was less likely than not that such exposure could result in this disease given the lack of current medical evidence. He opined that there did not appear to be medical support for a causative link and that it was less likely than not due to Agent Orange exposure. The VA examiner reviewed the numerous inclusions from the treating neurologists regarding whether Agent Orange could be responsible for this disease. There was a 2008 note from Dr. F who described that it would not be unheard of for cerebellar ataxia to be caused by Agent Orange. The VA examiner also reviewed the 2009 note from Dr. D.K. that concluded that because the Veteran had no evidence of hereditary ataxia and no other cause had been found, it was likely that his symptoms related to a toxic agent, and that he had been exposed to Agent Orange, which had apparently been linked to these symptoms. The VA examiner concluded that the neurologists expressed varying degrees of possibility of a cause, but this represented uncertainty of a link from the medical evidence and would not meet the "neurological criteria" of at least as likely as not for causation. Although the May 2013 examiner reached a negative nexus, the Veteran's treating neurologist reached a positive link essentially recognizing that it was at least as likely as not the Veteran's cerebellar ataxia was due to exposure to a toxin such as Agent Orange where the medical evidence indicated that there was not a genetic cause. Given this record, the Board finds that the evidence to be in relative equipoise in showing that the current cerebellar ataxia as likely as not was due to the Veteran's presumed exposure to herbicides while serving in the Republic of Vietnam. In resolving all reasonable doubt in favor of the Veteran, service connection is warranted. ORDER Service connection for cerebellar ataxia is granted ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs