Citation Nr: 0305405
Decision Date: 03/24/03 Archive Date: 04/03/03
DOCKET NO. 98-07 975 ) DATE
On appeal from the
Department of Veterans Affairs Medical & Regional Office
Center in Fort Harrison, Montana
Entitlement to service connection for sarcoidosis.
Appellant represented by: AMVETS
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Counsel
The veteran had active duty from October 1966 to September 1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1998 rating decision by the Reno, Nevada Regional Office (RO) of the Department of
Veterans Affairs (VA). During the course of the appeal, the
claims file was transferred to the Fort Harrison, Montana
Medical and RO Center (M&ROC) and certified from there to the Board.
The veteran provided oral testimony before a Hearing Officer at the M&ROC in January 1999, a transcript of which has been associated with the claims file.
In January 2003, the Board undertook additional development on the claim of entitlement to service connection for sarcoidosis, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002), 38 C.F.R. Â§ 19.9(a)(2) (2002).
The development has been completed and associated with the claims file, and the veteran has not yet been notified of the development. Nonetheless, as the disposition of this appeal is a full grant of benefits on appeal, the Board finds no prejudice to the veteran in proceeding with the appeal at
this time. 38 C.F.R. Â§ 20.903 (2002); Bernard v. Brown, 4
Vet.App. 384, (1993).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained, and the veteran has been properly notified of the elements necessary to grant his claim for the benefit sought.
2. The veteran served in the Republic of Vietnam.
4. The competent and probative evidence of record
establishes that sarcoidosis is related to service.
CONCLUSION OF LAW
Sarcoidosis was incurred in active service. 38 U.S.C.A.
Â§Â§ 1110, 5107 (West 2002), 38 C.F.R. Â§ 3.303 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service medical records do not show that the veteran was
treated for a lung condition in service.
He served in Vietnam from September 1967 to September 1968, and he is the recipient of the Vietnam Service Medal and the Vietnam Campaign Medal. According to his DD Form 214, he was a postal clerk and clerk-typist in service.
VA and private medical records show that the veteran was
stabbed in the chest in February 1983. At that time there
was no indication of sarcoidosis. In July 1995, chest x-ray
revealed hilar and possible mediastinal enlargement, with a
possible etiology of sarcoidosis. An August 1995 chest x-ray confirmed lymphoma with metastatic disease, sarcoid, and an inflammatory process.
In December 1995, the veteran underwent surgical biopsy of
the left supraclavicular lymph node, due to the progressively
enlarging mediastinal adenopathy shown on diagnostic studies. The corresponding biopsy showed sarcoidosis. The diagnosis of sarcoidosis was again noted in April 1996. In July 1996, the chest x-ray impression included persistent with improved general mediastinal adenopathy.
A pulmonary functions test was performed in March 1997,
without interpretation from the examiner. A chest x-ray at
that time showed slightly increased hilar adenopathy.
September 1997 chest-rays showed bilateral hilar enlargement compatible with adenopathy, unchanged since March 1997. The diagnosis of sarcoidosis was again noted in September 1997, July 1999, and November 2000.
In October 1997, a VA psychiatrist indicated support for the
veteran's efforts to obtain service connected disability due
medical conditions likely attributable to his Agent Orange
exposure in service.
At his personal hearing in January 1999, the veteran
testified and contended that his currently diagnosed
sarcoidosis resulted from his exposure to Agent Orange in
service; even though sarcoidosis is not a disease for which a presumption based on exposure to herbicides in service is
warranted. He stated that he was ordered to spray herbicides with high pressure hoses to kill the growth down in the perimeter, and he did not wear protective gear when
performing this task. He, at times, got soaked with the
herbicide chemical, especially when the wind was blowing.
In September 2001, the veteran underwent testing for asbestos exposure, sponsored by the Department of Health and Human Services. Chest x-rays showed evidence of scarring along the lining of the lungs or chest wall. Spirometry (lung) function was suggestive of both a decrease in airflow out of the lungs (airflow obstruction) and a decreased volume of air in the lungs (restrictive process).
On February 25, 2003, the veteran underwent a VA respiratory examination. The examiner reviewed his medical records, and claims file. From review of the record, the examiner noted that the veteran had had a biopsy of the left supraclavicular area in December 1995. The biopsy revealed a left supraclavicular lymph node that showed concatenating granulomata consistent with sarcoidosis.
The veteran said that he had done spraying in Vietnam during January through April of 1968 and at time he was soaked through his clothing and he walked in a solution of the Agent Orange. He had an Agent Orange registry examination done in September of 1997. The examiner pointed to the results of the December 1995 biopsy and said that it was a definite diagnosis that had been done by the Pulmonary Clinic and that as of March 1997, VA medical records revealed that the veteran had Stage I sarcoidosis.
Physical examination revealed that the veteran was
asymptomatic at the present time except for some chronic
furunculosis at times that appeared on his inner thighs and
he needed antibiotics if they became infected. He had no
furnunculosis at the present time. He was not showing any
fevers or night sweats. There was weight gain. He was 69
inches tall and weighed 327 pounds. In May of 2001 he
weighed 297 pounds.
A chest x-ray was done on February 11th, (2003). It showed
continued improvement in bilateral hilar adenopathy, mild
residual prominence of the right hilum, a normal left hilum,
normalized azygous node region, normal heart size, no lung
field changes of sarcoidosis, no effusions, surgical clips
overlying of the left lung apex and stable mild spondylosis.
The examiner's impression was:
Improvement in the sarcoid adenopathy, only mildly
prominent right hilum at this time. His final diagnosis
is sarcoidosis Stage I diagnosed in December of 1995
with x-rays showing improvement in the sarcoid
adenopathy only showing mild prominent right hilum at
this time and with asymptomatic symptoms at this time.
His only problem is a chronic furunculosis, skin rashes
that break out on the inner thighs at time and requires
antibiotics to help clear. Since etiology of cancer is
specified unknown it's as likely as not related to the
Agent Orange exposure while he was spraying in Vietnam
and at times soaked in the solution.
General Service Connection
The United States will pay compensation to any veteran
disabled by disease or injury incurred in or aggravated by
active military service, who was discharged or released under conditions other than dishonorable from the period of service in which the disease or injury was incurred, provided the disability is not the result of the person's own willful misconduct. 38 U.S.C.A. Â§ 1110 (West 2002); 38 C.F.R. Â§ 3.303.
The United States Court of Appeals for Veterans Claims (CAVC) has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
Service connection may be granted for disease that is
diagnosed after discharge from military service, when all of
the evidence establishes that such disease was incurred in
service. 38 C.F.R. Â§ 3.303(d) (2002); see Cosman v. Principi, 3 Vet. App. 303, 305 (1992).
Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. Â§ 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. Â§ 3.303(b)
To show 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, as distinguished from merely isolated
findings or a diagnosis including the word "chronic." When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. Â§ 3.303(b).
The CAVC has also reiterated that, alternatively, either or
both of the second and third elements can be satisfied, under 38 C.F.R. Â§ 3.303(b) (2002), by the submission of (a)
evidence that a condition was "noted" during service or
during an applicable presumption period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McManaway v. West, 13 Vet. App. 60, 65 (1999) (citing Savage v. Gober, 10 Vet. App. 488, 495-97).
The CAVC has further determined chronicity was not
demonstrated when the sole evidentiary basis for the asserted continuous symptomatology was the sworn testimony of the appellant himself and when "no" medical evidence indicated continuous symptomatology. McManaway, 13 Vet. App. at 66.
The CAVC stated that it clearly held in Savage that Section
3.303 does not relieve a claimant of the burden of providing
a medical nexus. Rather, a claimant diagnosed with a chronic condition must still provide a medical nexus between the current condition and the putative continuous symptomatology.
Service connection may also be granted for a disability
proximately due to, the result of, or aggravated by a
service-connected disease or injury. 38 C.F.R. Â§ 3.310(a)
(2002); Allen v. Brown, 7 Vet. App. 439 (1995).
When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. Â§ 3.310(a).
Secondary service connection may also be granted for the
degree of aggravation to a non-service connected disorder
which is proximately due to or the result of a service-
connected disorder. Allen v. Brown, 7 Vet. App. 439, 448-50
(1995). In secondary service connection cases VA medical
examinations must consider both onset as well as aggravation theories of increased disability. Allen, 7 Vet. App. at 449- 50.
In addition to law and regulations regarding service
connection, the Board notes that a disease associated with
exposure to certain herbicide agents listed in 38 C.F.R.
Â§ 3.309(e) (2002) will be considered to have been incurred in
service under the circumstances outlined in that section,
even though there is no evidence of such disease during such period of service. 38 C.F.R. Â§ 3.307(a) (2002).
38 U.S.C. 1116(f) provides that for purposes of establishing
service connection for a disability or death resulting from
exposure to a herbicide agent, including a presumption of
service-connection under this section, 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, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. Section 201 of the "Veterans Education and Benefits Expansion Act of 2001."
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. Service in the Republic of Vietnam includes
service in the waters offshore and service in other locations
if the conditions of service involved duty or visitation in
the Republic of Vietnam. 38 C.F.R. Â§ 3.307(a)(6)(iii).
The following diseases shall be service-connected if the
requirements of 38 C.F.R. Â§ 3.307(a)(6) are met, even though
there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. Â§ 3.307(d) are also satisfied: Chloracne or other
acneiform disease consistent with chloracne; Hodgkin's
disease; non-Hodgkin's lymphoma; acute and subacute
peripheral neuropathy; Type II diabetes mellitus; Porphyria
cutanea tarda; Prostate cancer; Multiple myeloma; Respiratory cancers (cancers of the lung, bronchus, larynx or trachea); or Soft tissue sarcoma. 38 C.F.R. Â§ 3.309(e) (2002).
These diseases shall become manifest to a degree of 10
percent or more at any time after service, except that
chloracne or other disease consistent with chloracne, and
porphyria cutanea tarda shall have become manifest to a
degree of 10 percent or more within a year, and respiratory
cancers within 30 years, 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. Â§ 3.307(a)(6)(ii)
Evidence which may be considered in rebuttal of service
incurrence of a disease listed in Sec. 3.309 will be any
evidence of a nature usually accepted as competent to
indicate the time of existence or inception of disease, and
medical judgment will be exercised in making determinations
relative to the effect of intercurrent injury or disease.
The expression "affirmative evidence to the contrary" will
not be taken to require a conclusive showing, but such
showing as would, in sound medical reasoning and in the
consideration of all evidence of record, support a conclusion that the disease was not incurred in service. 38 C.F.R. Â§ 3.307(d).
The Secretary has also determined that there was no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. 59 Fed. Reg. 57589 (1996) (codified at 38 C.F.R. Â§Â§ 3.307, 3.309) (2002).
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit (CAFC) determined that the
Veterans' Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, Â§ 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). Competent medical evidence is required where the issue involves medical causation. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).
Preliminary Matter: Duty to Assist
The Board initially notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the VCAA,
Pub. L. No. 106-475, 114 Stat. 2096 (2000).
Among other things, this law eliminates the concept of a
well-grounded claim, redefines the obligations of VA with
respect to the duty to assist, and supercedes the decision of the CAVC in Morton v. West, 12 Vet. App. 477 (1999),
withdrawn sub nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well-grounded.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA, or filed before
the date of enactment and not yet filed as of that date.
VCAA, Pub. L. No. 106-475, Â§ 7(b), 114 Stat. 2096, 2099-2100
(2000), 38 U.S.C.A. Â§ 5107 note (Effective and Applicability
Provisions) (West Supp. 2002). On August 29, 2001, the final regulations implementing the VCAA were published in the Federal Register.
The portion of these regulations pertaining to the duty to
notify and the duty to assist are also effective as of the
date of the enactment of the VCAA, November 9, 2001. 66 Fed. Reg. 45,620, 45,630-45,632 (August 19, 2001) (now codified at 38 C.F.R. Â§ 3.159).
Judicial case law is inconsistent as to whether the new
statute is to be given retroactive effect. The CAVC has held
that the entire VCAA potentially affects claims pending on or
filed after the date of enactment (as well as certain claims
that were finally denied during the period from July 14,
1999, to November 9, 2000). See generally Holliday v.
Principi, 14 Vet. App. 280 (2001); see also Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
That analysis would include cases that had been decided by
the Board before the VCAA, but were pending in the CAVC at the time of its enactment. However, the CAFC has recently held that only section 4 of the VCAA (which eliminated the well-grounded claim requirement) is retroactively applicable to decisions of the Board entered before the enactment date of the VCAA, and that section 3(a) of the VCAA (covering duty-to-notify and duty-to-assist provisions) is not retroactively applicable to pre-VCAA decisions of the Board. See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (stating that Dyment "was plainly correct").
Although the CAFC appears to have reasoned that the VCAA may not retroactively apply to claims or appeals pending on the date of its enactment, it stated that it was not deciding that question at this time. In this regard, the Board notes that VAOPGCPREC 11-00 appears to hold that the VCAA is retroactively applicable to claims pending on the date of its enactment. Further, the regulations issued to implement the VCAA are expressly applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001).
Precedent opinions of the chief legal officer of the
Department, and regulations of the Department, are binding on the Board. 38 U.S.C.A. Â§ 7104(c) (West Supp. 2002).
Therefore, for purposes of the present case, the Board will
assume that the VCAA is applicable to claims or appeals
pending before the RO or the Board on the date of its
The Board notes that the duty to assist has been satisfied in
this instance. The RO has made reasonable efforts to obtain evidence necessary to substantiate the veteran's claim, including any relevant records adequately identified by him as well as authorized by him to be obtained. 38 U.S.C.A. Â§ 5103A (West Supp. 2002); see also McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
As previously noted, the Board has undertaken additional
development on the claim, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002), 38 C.F.R.
Â§ 19.9(a)(2) (2002). The completed development, as well as
prior development of the claim by the RO, satisfy the duty to
assist to the extent necessary to allow for a full grant of
the benefit sought on appeal, such that additional
development of the claim is unnecessary. See generally,
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In any event, the RO provided and showed that it had fully
considered the criteria under the new law when it issued a
supplemental statement of the case in June 2002.
Service in Vietnam includes service in the waters offshore,
or service in other locations if the conditions of service
involved duty or visitation in Vietnam. 38 C.F.R. Â§ 3.313
(2002). The record establishes that the veteran had active
duty in Vietnam, and exposure to herbicides during that time is presumed. The medical record indicates that the veteran has a lung disability, currently diagnosed as sarcoidosis. This disability is not listed in the governing regulation concerning herbicide exposure. However, the probative and competent medical evidence of record, namely the VA medical opinion rendered in February 2003, links sarcoidosis to the veteran's exposure to Agent Orange in service, thereby warranting entitlement to a grant of service connection.
The VA examiner reviewed the veteran's medical records and provided a medical opinion that it was at least as likely as not that the veteran's sarcoidosis was related to Agent
Orange exposure in service. The Board considers that the
medical opinion is from a competent medical professional who had reviewed the veteran's entire medical history and claims file.
Accordingly, the Board finds that the evidentiary record
supports a grant of entitlement to service connection for
Entitlement to service connection for sarcoidosis is granted.
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.