Citation Nr: 1542895	
Decision Date: 10/06/15    Archive Date: 10/13/15

DOCKET NO.  14-08 633	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for progressive supranuclear palsy (PSP), claimed as Parkinson's disease, to include as due to exposure to Agent Orange.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel


INTRODUCTION

The Veteran had active military service from March 1968 until January 1970. 

This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida.


FINDING OF FACT

The Veteran's PSP is related to active service.


CONCLUSION OF LAW

The criteria for service connection for PSP, to include as due to exposure to Agent Orange have been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The claim of entitlement to service connection for progressive supranuclear palsy is being granted in full by the Board. Any error related to VA's duties to notify and assist with regard to this issue, pursuant to the Veterans Claims Assistance Act of 2000, is thereby rendered moot by this fully favorable decision. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015).

Legal Criteria

Service Connection in general

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498   (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 

For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). 

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2014). 

Presumptive service connection - herbicide exposure

VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 C.F.R. § 3.309(e) (2015). 

A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. 

The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.

If a Veteran was exposed to an herbicide agent 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 further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d)  are also satisfied: Chloracne or other acne form disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), 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 further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d)  are also satisfied. 38 C.F.R. § 3.309(e). 

The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. 
 § 3.307(a)(6)(ii).

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. 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 U.S. Court of Appeals for 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.

An essential element of a claim for service connection is evidence of a current disability. The claims folder reveals that the Veteran has been diagnosed with progressive supranuclear palsy in 2009. (See VA medical records.). Based on the medical evidence provided, the Board finds that the Veteran has met an essential element of having a disability for VA purposes. 

A second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. Here, the Veteran contends that while on active duty he was exposed to Agent Orange during his tour in the Republic of Vietnam. The claims folder reflects and VA has conceded the Veteran's service in the Republic of Vietnam. Additionally, VA has conceded the Veteran had herbicide exposure during his Vietnam service. As such, the Board finds that an element of a service connection claim, injury in service, has been met (i.e. exposure to Agent Orange).

Veterans exposed to Agent Orange or other listed herbicides are presumed service-connected for certain conditions, including Parkinson's disease, even if there is no record of such disease during service, so long as the condition has manifested to a degree of 10 percent or more. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).

The evidentiary requirements for establishing entitlement to service connection are more relaxed for the diseases listed in 38 C.F.R. § 3.309(e). Section 3.303(e) provides that when exposure to herbicide agents is established during active service, diseases associated with herbicide exposure that manifest at any date, however remote, after service are entitled to service connection, unless they are clearly attributable to causes unrelated to service ("intercurrent causes"). See 38 C.F.R. § 3.307(d). 

The Veteran has consistently contended that his diagnosed PSP is similar in nature to that of Parkinson's disease, and as such, should be afforded the presumption to service connection. The Board finds this contention unpersuasive in this case. The regulation clearly states herbicide exposed veterans diagnosed with Parkinson's disease may be service connected on a presumptive basis. However, the regulation does not expand the presumption to illnesses or diseases that are similar to or carry the same symptoms. As such, the Board finds that presumptive service connection for progressive supranuclear palsy is not warranted in this case. 

While the Veteran is not entitled to service connection for PSP on a presumptive basis, service connection may still be granted on a direct basis. 

Generally, a third element for service connection is competent credible evidence of a nexus between the current disability and the in-service disease or injury, or, in some cases, continuity of symptoms. In a November 2011 nexus statement, the Veteran's neurologist opined that that the Veteran's progressive supranuclear palsy is most likely caused by or a result of his exposure to Agent Orange. The neurologist explained that PSP is a movement disorder very similar to Parkinson's disease. The neurologist further explained that PSP affects the same areas as Parkinson's disease and is possibly causally related to chemical exposure such as Agent Orange. 

In light of the Veteran's confirmed in-service incurrence, the objective clinical medical evidence, and his credible and competent statements in support of the claim, the Board finds that the evidence is at least in equipoise regarding service connection for progressive supranuclear palsy and will resolve reasonable doubt in favor of the Veteran. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). All the elements necessary for establishing service connection are met and the Veteran's claim for service connection for progressive supranuclear palsy is granted.


ORDER

Entitlement to service connection for progressive supranuclear palsy, to include as due to exposure to Agent Orange is granted.



____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs