Citation Nr: 1535663	
Decision Date: 08/20/15    Archive Date: 08/31/15

DOCKET NO.  11-24 970	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to service connection for cerebellar ataxia.


REPRESENTATION

Appellant represented by:	Susan Paczak, Attorney


WITNESSES AT HEARINGS ON APPEAL

Veteran and his Spouse


ATTORNEY FOR THE BOARD

J. Tittsworth, Associate Counsel


INTRODUCTION

The Veteran served from January 1969 to January 1971.  He served in the Republic of Vietnam from June 1969 to June 1970. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania denying service connection.

The Veteran's claims file has been converted from a paper file to an electronic file managed in the Veterans Benefits Management System (VBMS). 

The Veteran testified at a Travel Board hearing before the undersigned in September 2013.  A transcript of the hearing is associated with the Veteran's file. He also had a hearing at the RO and a transcript of that hearing is also on file.


FINDING OF FACT

The evidence is evenly balanced as to whether the Veteran's current cerebellar ataxia is related to exposure to Agent Orange during service.  


CONCLUSION OF LAW

With resolution of reasonable doubt in the Veteran's favor, cerebellar ataxia was incurred in active service.  38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. § 3.303 (2015).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014)).  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992).

Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be (1) competent evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  

In this case, the Veteran meets the current disability requirement.  His VA treatment records and examinations acknowledge a current diagnosis of cerebellar ataxia.  

A veteran who served on active duty in the Republic of Vietnam between the periods from January 9, 1962 to May 7, 1975, is presumed to have been exposed to certain herbicide agents including Agent Orange.  38 C.F.R. § 3.307(a)(6)(iii).   The Veteran served in Vietnam from June 1969 to June 1970, and the Board concedes he was exposed to Agent Orange during service. 

Regarding the third element, under some circumstances, the "nexus" between herbicide exposure and certain associated diseases will also be presumed.  See 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  However, cerebellar ataxia is not included in the diseases listed at 38 C.F.R. § 3.309(e), for which service connection may be presumed.  Thus, for service connection to be established in this case there must be competent evidence of a nexus between the Veteran's exposure to herbicide during service and cerebellar ataxia.  

There are four medical opinions addressing whether a nexus exists between the Veteran's cerebellar ataxia and his in-service exposure to Agent Orange.  The February 2010 opinion is not probative because the examiner does not adequately explain why the Veteran's cerebellar ataxia did not result from Agent Orange exposure.  The June 2013 opinion written by the Veteran's treating physician is speculative and the does not rise to the level of at least as likely as not.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993).  As such, the Board assigns it no probative value.

The remaining two opinions dated June 2009 and June 2012 are credible and equally probative.  In June 2009, the Veteran's treating neurologist notes that several of the chemicals in Agent Orange including the dioxin contaminant TCDD are known neurotoxins.  The neurologist notes a history of progressive cerebellar ataxia, positive MRI findings, and lack of family history of neurodegenerative disorders, and concludes it is as likely as not that the Veteran's cerebellar ataxia is related to Agent Orange exposure.  On the other hand, in June 2012, a VA examiner specializing in occupational medicine reviewed the claim file, obtained a history from the Veteran, and found insufficient evidence to connect cerebellar ataxia to Agent Orange exposure.  The examiner notes that cerebellar ataxia can develop without any risk factors and cites several medical studies in support of his opinion.  

The June 2009 and June 2012 nexus opinions are both written by competent medical professionals who reviewed the claim file and provide an adequate basis for their conclusions.  The Board assigns similar probative weight to each opinion.  For this reason, the Board finds that the evidence is evenly balanced as to whether the Veteran's cerebellar ataxia is related to herbicide exposure in Vietnam.  By law, the doubt resulting from this relative equipoise in the evidence is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b).  Entitlement to service connection for cerebellar ataxia is therefore warranted.  


ORDER

Service connection for cerebellar ataxia is granted.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs