Citation Nr: 1429488 Decision Date: 06/30/14 Archive Date: 07/03/14 DOCKET NO. 13-18 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for Lewy body disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1963 to July 1967, including service in the Republic of Vietnam (Vietnam) during the Vietnam War (defined as January 9, 1962 to May 7, 1975). This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The competent evidence of record is at least in equipoise as to whether a relationship exists between the Veteran's Lewy body disease and his active duty service. CONCLUSION OF LAW Lewy body disease was incurred as a result of active service. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for a claimed disorder, there must be (1) medical 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) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran who had active military service in Vietnam during the Vietnam War is presumed to have been exposed to an herbicide agent during such service, unless there is affirmative evidence to establish that the veteran was not so exposed. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). If such exposure occurred, the veteran is entitled to a presumption of service connection for certain disorders listed under 39 C.F.R. § 3.309(e). While Parkinson's disease is listed among the disorders entitled to presumptive service connection, the Board notes that Lewy body disease is not. 39 C.F.R. § 3.309(e) (2013). Even when presumptive service connection is not appropriate, however, a veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Though Combee concerns radiation exposure rather than herbicide exposure, it applies by extension to cases, such as this one, that involve herbicide exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The Board will therefore analyze the possibility of entitlement to service connection for a neurological condition on a direct basis as well. With regard to the first Hickson element, medical evidence of a current disability, in March 2014, a neurologist with the Veterans Health Administration (VHA) found that the medical evidence of record suggested that the Veteran suffered from diffuse Lewy body disease. Accordingly, a current disability is demonstrated. With respect to the second Hickson element, in-service disease or injury, the Veteran served in Vietnam during the Vietnam War and thus, as noted above, his exposure to herbicides is conceded. The second Hickson element is therefore met as to an in-service injury. Regarding the third Hickson element, medical evidence of nexus, the weight of the evidence of record does not indicate that the Veteran suffers from Parkinson's disease or other neurological disease for which presumptive service connection may be granted. In March 2014, a VHA neurologist indicated that diffuse Lewy body disease and Parkinson's disease are closely-related neurological disorders, closer to each other than any other parkinsonian syndrome. In both cases, the pathological hallmark is the presence of Lewy bodies inside neurons. In Parkinson's disease, Lewy bodies are seen in the substantia nigra of the brain; in Lewy body disease, Lewy bodies are seen throughout the brain. The VHA neurologist indicated that Agent Orange may indeed increase the chance of developing Lewy body disease. The examiner indicated, however, that most patients with Parkinson's disease were not exposed to Agent Orange. The examiner concluded that though there is a possibility that the Veteran's diffuse Lewy body disease may be associated with his exposure to Agent Orange, the possibility is small. The VHA expert therefore concluded that it was less likely than not that the Veteran's Lewy body disease was related to military service. The Board acknowledges that the VHA neurologist was unable to find that the Veteran's Lewy body disease was related to his exposure to Agent Orange. The Board additionally notes, however, that the VHA neurologist extensively discussed the close resemblance of Lewy body disease to Parkinson's disease. Furthermore, the examiner did not explain why Lewy body disease should not be subject to service connection when the closely-related condition of Parkinson's disease is subject to presumptive service connection. Instead, the examiner simply suggested that because the majority of individuals who contract Parkinson's disease are not exposed to Agent Orange, it was less likely that the Veteran's closely-related condition of Lewy body disease was related to herbicide exposure. The Board finds this reasoning to be highly faulty, as most people were not exposed to herbicides, and most people do not get Lewy body disease. Further, people not exposed to herbicides contract Parkinson's disease. Using the doctor's rational, Parkinson's disease (or any other disability) should not be found to be caused by herbicide exposure because the majority of individuals who contract Parkinson's disease are not exposed to Agent Orange. The critical question in this case was whether the Veteran's exposure to herbicides made the Veteran more susceptible to this disability, using the standard "at least as likely as not" (50% or greater chance). Given the great similarities between the two disabilities, and the fact that the Veteran was exposed to herbicides, the Board gives the Veteran the benefits of the doubt. In this case, the Board relies on the examiner's finding of the close relationship between the two conditions to support a grant of service connection for Lewy body disease, making it as likely than not associated with service. In sum, in light of the evidence that the Veteran's diffuse Lewy body disease is closely related to Parkinson's disease, a condition for which presumptive service connection is warranted, the weight of the probative evidence of record is at least in equipoise as to whether the Veteran's Lewy body disease is related to his in-service exposure to herbicides. Service connection for Lewy body disease is warranted, and the Veteran's claim for service connection is granted, subject to the controlling laws and regulations that govern awards of VA compensation. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for Lewy body disease is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs