Citation Nr: 1340119 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 10-19 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for cystic lesions of the spinal cord, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to April 1973, with service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In his April 2010 substantive appeal, the Veteran requested a hearing before a member of the Board, which was scheduled in March 2013. The Board notes that the Veteran failed to appear for such hearing, and he has not requested that such hearing be rescheduled. The Board therefore considers his April 2010 hearing request to be withdrawn. The Board notes that while the Veteran filed a claim for entitlement to service connection for a back disability, and a review of the VA treatment records associated with the claims files show that he has diagnoses of degenerative joint disease of the back and spinal stenosis, his back disability is primarily caused by cystic lesions along the thoracic and lumbar spine with associated compression on the spinal cord. Based on the Veteran's various statements of record, specifically in his August 2009 notice of disagreement and his April 2010 substantive appeal, it appears that the Veteran is only seeking entitlement to service connection for the cystic lesions along his spinal cord, and any residual effects. As such, the Board has limited its consideration accordingly. In March 2013, additional evidence was submitted via the Veteran's representative. Waiver of RO consideration accompanied this evidence, so the Board can proceed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. The Board notes that in January 2013, the Veteran filed a claim for service connection for peripheral neuropathy of the lower extremities, to include as due to herbicide exposure. Additionally, in his April 2010 substantive appeal, the Veteran indicated his desire to file a claim for entitlement to service connection for bilateral hearing loss disability. These issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's cystic lesions of the spinal cord are related to his active service, to include exposure to herbicides therein. CONCLUSION OF LAW The criteria for service connection for cystic lesions of the spinal cord, to include as due to herbicide exposure, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116(f), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2013). Also, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). 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. VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27630-27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. The Veteran asserts that his current back disability is related to his active service; specifically, to herbicide exposure sustained during his service in the Republic of Vietnam. The record does not reflect, and the Veteran has not asserted, that his back disability actually began during service or until many years after service. A review of the Veteran's service treatment records (STRs) are silent for any complaints or diagnoses related to any spinal problems. The earliest indication that the Veteran was suffering from a back disability is a January 2007 VA treatment record noting that the Veteran was suffering from progressive weakness that had negatively impacted his ability to ambulate, perform activities of daily living, and function within his community. The January 2007 VA treatment record refers to an August 2006 magnetic resonance imaging scan (MRI) of the Veteran's spine, which revealed multiple intradural extramedullary masses extending from T2-3 to T8, and also into the lumbar spine, with compression of the thecal sac and an abnormality indicating edema within the spinal cord. The treatment note indicates that the possibility of Cryptococcus was ruled out, and biopsy of the masses had been determined too risky; a definitive cause was not determined, and it was noted that the Veteran might never be able to walk again. Subsequent VA treatment notes show that the Veteran continued to receive follow-up care for the masses discovered on his spine, and that the condition remained relatively unchanged; however, the etiology of such disability remained undetermined. A December 2009 VA treatment record notes that a possible etiological relationship between the cystic lesions and the Veteran's exposure to herbicides during active service was considered, but there is no indication that such a relationship was ever affirmatively established, or definitively ruled out. July 2010 MRI noted the lesions were essentially unchanged and the sequela of prior infection was noted as a possible etiology. Recent VA treatment records, dated January 2013, associated with the Veteran's "Virtual VA" file, indicate that the cause of the spinal cord process was still undetermined at that time, but the lesions were noted to be stable since August 2006. The VA treatment records provide no indication that the cystic lesions on the Veteran's spine were ever affirmatively linked to the Veteran's active service, to include his exposure to herbicides therein, or that a definitive cause for the lesions was ever established. In March 2013, the Veteran submitted a VA medical opinion, from Dr. P.G., which states that it is at least as likely as not that the Veteran's spinal cord condition is related to his active service in the Republic of Vietnam, to include his exposure to herbicides therein. Dr. P.G. explained that his opinion was based on the lack of any other alternate clear-cut diagnosis and noted that the Veteran's spinal cord condition has an atypical MRI appearance that has eluded a clear diagnosis, despite spinal tap and many blood tests. He further noted that it is unlikely that new information or testing will shed more light on the underlying cause of the Veteran's neurological disorder. [Dr. P.G. also provided an opinion with regard to the Veteran's peripheral neuropathy; however, the Board notes that this issue is not currently on appeal.] The Board finds that the record, as it currently stands, contains both evidence for and against the Veteran's claim. Notably, the March 2013 VA opinion from Dr. P.G., which stated that the Veteran's spinal cord condition was at least as likely as not related to his active service, to include his exposure to herbicides therein, supports the Veteran's claim. The Board does acknowledge that Dr. P.G.'s rationale is somewhat speculative in that it is largely based on the fact that no conclusive etiology has been discovered for the disability, despite extensive testing. Further, the Board finds it significant that Dr. P.G. opined that additional medical testing would be unlikely to shed more light on the underlying cause of the Veteran's neurological disorder. Additionally, the Board notes that there is no negative opinion of record. The evidence against the claim consists of the lack of a diagnosed disability for which service connection can be granted on a presumptive basis as due to herbicide exposure according to 38 C.F.R. § 3.309(e); however, as noted above, the Board acknowledges that service connection may be established by showing that a disability was in fact causally linked to herbicide exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. As there is no indication that the Veteran's VA treatment providers have affirmatively established that his spinal cord disability was not caused by his exposure to herbicides, and in fact a definitive etiology, has never been discovered, the Board has no reason to doubt the competency of the March 2013 VA medical opinion. Thus, upon review of the record, the evidence regarding the issue of whether, the Veteran's spinal cord disability is related to his active service, to include his exposure to herbicides therein, is in relative equipoise, i.e., about evenly balanced for and against the claim. In these situations, the Veteran is given the benefit of the doubt. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's spinal cord disability is related to his active service, to include exposure to herbicides therein. 38 C.F.R. § 3.102. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue). As such, the Board will grant this appeal. In closing, in view of the fact that the full benefit sought by the Veteran as to his claim for service connection for a back disability is being granted by this decision, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations because there is no detriment to the Veteran as a result of any VCAA deficiency. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). ORDER Entitlement to service connection for cystic lesions of the spinal cord is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs