Citation Nr: 22046045 Decision Date: 08/15/22 Archive Date: 08/15/22 DOCKET NO. 18-38 791 DATE: August 15, 2022 ORDER Entitlement to service connection for cerebrovascular accident (stroke) as due to exposure to herbicide agents, for substitution purposes, is granted. FINDINGS OF FACT 1. The Veteran served on active duty from February 1968 to February 1971, to include service in Vietnam; exposure to herbicide agents is conceded. 2. The evidence is at least in relative equipoise as to whether there is a causal relationship between the Veteran's exposure to herbicides in service and his subsequent cerebrovascular accident (stroke). CONCLUSION OF LAW Resolving reasonable doubt in favor of the Appellant, the criteria for service connection for cerebrovascular accident (stroke) are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Air Force from February 1968 to January 1972, to include service in Panama and Vietnam. The Appellant has been substituted for the Veteran with respect to the claims that were pending at the time of his death in January 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a notice of disagreement (NOD) in March 2015. A statement of the case was issued in June 2018. The Appellant perfected a timely substantive appeal via VA Form 9 in July 2018. The Appellant and her representative appeared at a virtual Board hearing before the undersigned Veterans Law Judge in November 2021. A transcript of the proceeding is associated with the claims file. The record reflects that additional evidence, including relevant private medical opinions, was added to the claims file following the certification of this claim to the Board. However, in light of the full grant of the benefit sought on appeal, there is no prejudice in proceeding with adjudication. 1. Entitlement to service connection for cerebrovascular accident (stroke), for substitution purposes, is granted. The Appellant contends that service connection is warranted for the Veteran's cerebrovascular accident (stroke), to include as due to exposure to herbicide agents during his service in Vietnam. Procedural History As an initial matter, the Board notes that the Veteran initially filed a claim seeking service connection for "asphasia/CVA job injury" in November 2010. A March 2013 rating decision denied entitlement to service connection for aphasia, cerebrovascular accident, and job injury, among other claims. In June 2013, the Veteran submitted a "Statement in Support of Claim" in which he referenced the March 2013 rating decision, the claimed conditions of stroke and chronic obstructive pulmonary disorder (COPD). The RO accepted this statement as a request for reconsideration and readjudicated the claim in a January 2015 rating decision, continuing the prior denial. The current law requires that an NOD be filed on a specific VA-generated form which requires the Veteran to specify the rating decision and issues with which he disagrees. See 38 C.F.R. § 20.201. However, at the time of the March 2013 rating decision, the law and regulations defined an NOD as a written communication from a claimant or a representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction and a desire to contest the result. The regulations further stated that while special wording is not required, the NOD must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review. If the agency of original jurisdiction (AOJ) gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. See 38 U.S.C. § 7105 (1991); 38 C.F.R. § 20.201 (effective prior to September 25, 2014). Additionally, if the AOJ receives timely written communication expressing dissatisfaction or disagreement with the adverse decision, but the AOJ cannot clearly identify that communication as expressing an intent to appeal, or the AOJ cannot identify which denied claim(s) the claimant wants to appeal, then the AOJ shoulder contact the claimant for clarification of the claimant's intent. See 38 C.F.R. § 19.26(b). Here, the June 2013 communication from the Veteran could reasonably be construed as expressing dissatisfaction with the March 2013 disability rating, which he identified by date. The communication also clearly conveyed that the Veteran had experienced a stroke and sought a VA examination and Agent Orange screening for the stroke and COPD conditions. He wrote, "[m]y exposure was real and the presumptive conditions have been diagnosed." The AOJ did not communicate with the Veteran regarding this statement until a Standard 5013 Notice letter was sent in January 2015 requesting any treatment records related to the claim. In determining whether a statement constitutes a NOD, "the actual wording of the communication and the context in which it was written" must be considered. Jarvis v. West, 12 Vet. App. 559, 561 (1999). Whether worded broadly or narrowly, VA is to liberally construe all communications. EF v. Derwinski, 1 Vet. App. 324, 326 (1991). The United States Court of Appeals for Veterans Claims (Court) has made clear that the VA adjudication process "is not meant to be a trap for the unwary... a stratagem to deny compensation [nor] a minefield" for claimants. Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) ((quoting Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009)); see also Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002) (assuming that a veteran desired appellate review, meeting the requirement of 38 C.F.R. § 20.201 is not an onerous task). After considering the context and procedural history of this case, the Board will liberally construe the June 2013 statement as a NOD contesting the March 2013 rating decision as to the claim of entitlement to service connection for a cerebrovascular accident (stroke). See Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a [NOD]."). The Veteran identified the decision by date, specifically referenced the claim of entitlement to service connection for a stroke, and requested action in the form of VA examination to determine any relationship between Agent Orange and the stroke. As there was a valid NOD, the March 2013 rating decision was not final. Accordingly, new and material evidence is not required for consideration of the claim. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed during such service to herbicides, unless there is affirmative evidence to establish that the veteran was not exposed to herbicides during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a). Cerebro-vascular accidents (strokes) are not deemed associated with exposure to an herbicide agent under VA law. 38 C.F.R. § 3.309(e). However, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). The Board must not only determine whether a veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, but must also determine whether the disability was the result of active service under 38 U.S.C. § 1110 and 38 C.F.R. § 3.303(d). In other words, the fact that a veteran does not meet the requirements of 38 C.F.R. § 3.307(a) does not in and of itself preclude the establishment of service connection by way of proof of direct causation. After review of the evidence of record, the Board finds the evidence to be in relative equipoise as to whether the cerebrovascular accident (stroke) is etiologically related to his service. In a January 2011 statement, the Veteran claimed that his stroke was secondary to neurosyphilis. An April 2011 statement asserted that the stroke was due to Agent Orange exposure. The March 2015 NOD stated that the stroke was secondary to ischemic heart disease. The Veteran noted that his doctor had stated that his cerebrovascular accident was caused by arteriosclerosis. The Veteran's military personnel records reflect that he served in Vietnam for a portion of his service between 1968 and 1972; therefore, it is conceded that he was exposed to certain herbicide agents, including Agent Orange. In an April 2019 private evaluation, Dr. J.P. opined that it was more likely than not that the Veteran had PTSD due to his service. She further stated that it is more likely than not that the symptoms of PTSD caused or majorly contributed to the Veteran's cerebrovascular accident. Dr. J.P. also wrote that the substance abuse contributed to the Veteran's physical decline. In a second private evaluation dated February 2020, Dr. W.L. stated that the stroke that caused the Veteran's death was at least as likely as not associated with his Agent Orange exposure. Dr. W.L. referenced new medical evidence suggesting that Vietnam veterans show a statistically significant overall increase in stroke associated with exposure to the dioxin-like chemicals in Agent Orange. He also noted that the Veteran's Parkinson's-like symptoms at least as likely as not contributed to the stroke. Dr. W.L. acknowledged that the Veteran's medical history is complex with many of his symptoms and conditions remaining largely idiopathic from an etiological standpoint despite obvious and severe symptoms. However, following his review, he reiterated his firm belief that the Veteran's Agent Orange exposure was a significant factor in causing the conditions, including the stroke. After careful consideration, the Board finds the evidence to at least be in equipoise as to whether the Veteran's cerebrovascular accident (stroke) is related to his conceded exposure to herbicide agents. Accordingly, after resolving all doubt in favor of the Appellant, service connection for cerebro-vascular accident (stroke) is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Jamison, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.