On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota
1. Entitlement to service connection for polyarteritis nodosa (PAN), to include as secondary to Agent Orange exposure.
2. Entitlement to service connection for Meniere's disease.
Appellant represented by: Jon M. Brown, Agent
WITNESSES AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
M. J. In, Counsel
The Veteran served on active dury from March 1970 to October 1971.
These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2010 and Janaury 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO).
The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2012. A transcript of that hearing is associated with the claims file.
The record reflects that the Board received additional evidence consisting of private medical opinions, but that no waiver of RO consideration was associated with it. The Board finds that the Veteran is not prejudiced by the Board's consideration of the newly received evidence without initial RO consideration because the Board is granting herein the full benefit sought with regard to the claim for service connection for PAN. Therefore, a remand is not necessary. See Soyini v. Derwinski, 1 Vet. App. 540 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).
An an opinion letter dated September 10, 2013 from Dr. Craig Bash states that the Veteran's PAN, as well as his service-connected disabilities and clinical problems affect his ability to be gainfully employed and raises the claim of entitlement to a total disability rating based on individual unemloyability (TDIU). As such, the issue of entitlement to a TDIU has been raised by the record in this September 2013 statement. Although a claim for TDIU was previously denied in the August 2010 rating decision, the Veteran did not appeal this issue. Therefore, the Board does not have jurisdiction over it, and it is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. § 19.9(b) (2014).
The issue of entitlement to service connection for Meniere's disease is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.
FINDINGS OF FACT
1. On July 8, 2014, the Board issued a decision as to issue of entitlement to service connection for PAN.
2. On September 18, 2013 and September 26, 2013, additional evidence was received by the Board; however, it was not associated with the claims file until October 9, 2014, after the Board's July 8, 2014 decision was issued.
3. The evidence of record is in relative equipoise as to whether the Veteran's PAN is at least as likely as not etiologically related to service, to include as due to Agent Orange exposure.
CONCLUSION OF LAW
1. The July 8, 2014 Board decision addressing the issue of entitlement to service connection for PAN, to include as secondary to Agent Orange exposure, is vacated. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2014).
2. The criteria for service connection for PAN have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONVacatur
The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2014).
On July 8, 2014, the Board issued a decision as to issue of entitlement to service connection for PAN, to include as secondary to Agent Orange exposure. On September 18, 2013 and September 26, 2013, prior to the issuance of the decision, the Board received additional evidence consisting of private medical opinions pertinent to the issue. Unfortunately, the evidence was not associated with the claims file until October 9, 2014, after the issuance of the July 8, 2014 Board decision. Based on the receipt of additional evidence, the Board finds that the vacatur of the July 8, 2014 decision is warranted.
Service Connection for PAN
The Veteran contends that his currently diagnosed PAN is related to his active duty service, specifically his exposure to herbicide while serving in Vietnam. During the October 2012 Board hearing, the Veteran testified that, based upon his own personal research as well as what he has been told by his treating physicians, he believes that his PAN may have been caused by Agent Orange. He explained that the research is leaning towards an environmental cause for PAN, and that herbicides and dioxin are included among the list of suspicious environmental factors.
Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era 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 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307.
The following diseases are deemed associated with herbicide agent exposure, under VA law: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, diabetes mellitus (Type II), Hodgkin's disease, ischemic heart disease, hairy cell leukemia and other chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson' disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309; see Final Rule, 78 Fed. Reg. 54,763-65 (September 6, 2013).
The Veteran's service personnel records show that he had service in the Republic of Vietnam from August 20, 1970 to October 28, 1971. The Veteran is therefore presumed to have been exposed to herbicide agents, to include Agent Orange. 38 U.S.C.A. § 1116(f).
Here, the issue presented is whether the Veteran's claimed disability is related to his military service on a direct, including presumptive, basis. The Veteran has a current diagnosis of PAN. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).
Although the Veteran is presumed to have been exposed to herbicides during service, a finding of service connection by presumption is not warranted here, as PAN is not among those diseases presumptively linked to herbicide exposure under 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 -32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21,258 -21260 (May 7, 2009); see also Notice, 75 Fed. Reg. 32540 (June 8, 2010); Notice, 75 Fed. Reg. 81332 -81335 (December 27, 2010).
Notwithstanding the foregoing, the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 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 (Fed.Cir. 1994). The United States Court of Appeals for Veterans Claims has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999).
Having carefully reviewed all evidence of record, the Board determines that there is sufficient basis to award service connection on direct bases. Here, the record contains conflicting medical opinions regarding the relationship of the Veteran's PAN to the in-service exposure to herbicides.
In support of his claim, the Veteran has submitted records reflecting that he is participating in a research study through the Mayo Clinic to learn more about PAN. Additionally, the Veteran provided a June 2010 statement from Dr. Steven Santilli, a VA Chief of Vascular Surgery, who stated that there is "no known cause for developing his poly-arthritis nodosa," and that he "did not know of any proven link between polyarthritis nodsum and agent orange exposure" but that this fact "did not preclude a cause and effect relationship." The Veteran also provided a July 2010 letter from Dr. Hollis Krug, a VA rheumatologist, who stated that there is "no identified association between Agent Orange and PAN, but there is also nothing that refutes an association between Agent Orange and PAN." Dr. Krug noted that there was "some suggestion that Agent Orange could be linked to the development of autoimmune disease," but that the "cause of PAN in [the Veteran] is not known." Dr. Krug explained that
environmental triggers can cause PAN, and since there is no proof that Agent Orange does not cause PAN, and because Agent Orange apparently can be associated with the later development of autoimmune disease, it is possible that there could be some connection between Agent Orange and the development of PAN in [the Veteran.
Also in support of his claim, the Veteran has submitted numerous internet articles as medical treatise evidence. The medical treatise information provides general background information on PAN. One of the articles notes a possible circumstantial association with PAN and dioxin exposure, and concludes that the cause of PAN is not understood, and that a correlation between dioxin exposure and PAN is not outside of the realm of possibility but that correlation does not necessarily imply causation.
The medical evidence of record also includes a September 2013 nexus opinion linking the Veteran's currently diagnosed PAN to his exposure to Agent Orange in service. Specifically, after reviewing the Veteran's claims file, an independent medical expert, Craig N. Bash, M.D., provided an opinion that "considering every possible sound medical etiology/principle, to at least the 90% level of probability that [the Veteran's] current PAN is as likely as not due in significant part to his experiences with AO [(Agent Orange)] that he had during military service ..." In support of this opinion, Dr. Bash explained that per the Veteran's military records he entered the service fit for duty without any doctor-diagnosed illnesses, and he was exposed to AO in service; he now has PAN, which is an autoimmune disease and AO is known to cause changes in the immune system that lead to immune diseases as documented in the most recent Veterans and agent orange publication. Dr. Bash referred to the 2012 Journal of autoimmunity article finding that autoimmunity is thought to result from a combination of genetics, environmental triggers, and stochastic events, and LEE (2007s) finding increased prevalence of autoimmune arthritis in Australian veterans who were exposed to AO and that the researchers suggested that increased inflammatory responses was involved. Dr. Bash concluded that PAN is an inflammatory autoimmune process that involves the blood vessels, thus likely to be significantly affected by AO which also modulates the immune system and its inflammatory response, and that the time lag between injury in the Veteran's service and current pathology is consistent with known medical principles and the natural history of this disease.
In another September 2013 opinion letter, H. Montemarano, M.D. agreed with Dr. Bash "with at least 90 percent probability that [the Veteran's] autoimmune condition is at least as likely as not to have been caused by exposure to Agent Orange while on active duty." In reaching this conclusion, Dr. Montemarano first explained that PAN is a vasculitis of medium & small-sized arteries, which become swollen and damaged from attack by the affected patient's own immune cells, and that Agent Orange is known to contain 2, 3, 7, 8-tetrachlorodibenzodioxin (TCDD), an extremely toxic dioxin compound. Dr. Montemarano then discussed a recent article from the Journal of Autoimmunity that determined that TCDD was clearly linked to autoimmune diseases and that there may be a significant delay between exposure and disease onset.
In contrast, a May 2013 VA medical opined that it is less likely than not that the Veteran's PAN was caused by his military service or Agent Orange exposure. The examiner explained that there was no significant scientific causal relationship acknowledged between Agent Orange and PAN. The examiner noted that the Veteran reported an in-service blood transfusion, but that there was no evidence of any history of hepatitis. The examiner's opinion was based upon an examination of the Veteran, a review of the Veteran's claims file, as well as medical literature identified in the opinion.
Additionally, after reviewing the Veteran's claims file, the February 2011 VA examiner opined that the Veteran had no objective evidence of myocardial ischemia although he was claiming that PAN was ischemic heart disease. The examiner explained that PAN is a peripheral arterial disease affecting the arteries and that ischemic heart disease does not include peripheral vascular disease or other peripheral manifestations of atherosclerosis. The examiner noted that the Veteran reported subjective complaints of symptoms similar to ischemic heart disease, but that those symptoms do not equate to the presence of a diagnosis.
The Board finds that the foregoing opinions to be well-reasoned and persuasive in light of the detailed explanation provided by the physicians, as well as their expertise in this matter. The Board finds that neither of the medical nexus opinions is more probative than the other opinions. Therefore, the medical nexus opinions in this case are at least in relative equipoise. See Owens v. Brown, 7 Vet. App. 467 (1993) (VA is free to favor one medical opinion over another provided if there is an adequate basis for doing so).
Accordingly, resolving all doubt in the Veteran's favor, as VA is required to do, the Board finds that service connection for PAN is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The July 8, 2014 Board decision addressing the issue of entitlement to service connection for PAN, to include as secondary to Agent Orange exposure, is vacated.
Entitlement to service connection for PAN is granted.
The Veteran claims the onset of his currently diagnosed Meniere's disease in service. In his July 2013 substantive appeal he stated that "I feel my Meniere's disease is related to my active duty and began at that time."
In a July 2012 VA neurology consultation report, the Veteran reported a history of intermittent vertigo and tinnitus since 1971. He related that at that time, symptoms began with tinnitus in the right ear and then subsequently spread to the left ear and has become progressively worse over the years. He reported nausea and emesis during the early years with these symptoms but stated that he had learned to suppress this sensation. The Veteran also reported history of multiple concussions during the Vietnam War "perhaps up to a dozen," but none requiring hospitalization. The assessment was intermittent tinnitus and vertigo. It was noted that there may be a component of Meniere's disease as suggested by Otolaryngology but also a central component noted on videonystagmography (VNG) testing. It was further noted that the intermittent nature of the vertigo with some associated visual changes with "black spots" coupled with history of multiple head injuries may be suggestive for migraine variant.
Additionally, VA Neurology reports dated in April and November 2013 noted an assessment of paroxysmal tinnitus and vertigo with both peripheral and central nervous system components. It was noted that the Veteran likely had some component of Meniere's disease and there was also the suggestion of migraine variant as contributory to these events based on associated visual aura and headache. A May 2013 VA Otolaryngology report stated that the Veteran's vertigo significantly improved since starting on migraine drug from Neurology.
The foregoing evidence suggests a possible relationship of the Veteran's current Meniere's disease to his service-connected tinnitus or to his reported history of "multiple concussions during the Vietnam War." To that effect, VA regulations provide under section 38 C.F.R. § 3.310(a) that service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
In conjunction with this claim, the Veteran underwent a VA ear disease examination in November 2012. After reviewing the Veteran's claims file, the November 2012 VA examiner opined that the Meniere's disease was less likely than not incurred in or caused by the exposure to loud noise in 1970 because there is no real correlation between exposure to loud noises and the onset of Meniere's disease. An addendum opinion was obtained in December 2012, wherein the VA examiner addressed the Veteran's service treatment records noting external otitis and bilateral swollen ear canals in July 1971. The December 2012 VA examiner provided a negative nexus opinion and stated that external otitis does not cause an inner ear condition and that the ear popping which the Veteran had prior to military service was also less likely as not aggravated by military service because the Veteran did not have any care for this condition many years following military service and reported only recent symptoms of this condition.
The Board finds that the VA medical opinions obtained in November 2012 and December 2012 are not adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). These opinions only concluded that the Veteran's Meniere's disease was less likely as not caused by his exposure to loud noise and treatments for external otitis in service but did not address whether the Veteran's Meniere's disease was in any way related to his claimed head injuries in service, or proximately caused, or aggravated, by his service-connected tinnitus. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, a remand is required to obtain a supplemental medical opinion in this matter.
Accordingly, the case is REMANDED for the following action:
1. Obtain any outstanding VA treatment records from the VA Healthcare System (HCS) in Minneapolis, Minnesota and any associated outpatient clinics dated from November 2013 to the present.
2. Thereafter, obtain a supplemental medical opinion from the VA examiner who conducted the November 2012 VA ear disease examination, if available, to determine the etiology of the Veteran's Meniere's disease. If the November 2012 VA examiner is not available, schedule the Veteran for a VA examination by an individual with the appropriate expertise.
The entire claims file must be made available to and reviewed by the VA examiner. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements. Any and all indicated evaluations, studies, and tests should be accomplished.
The examiner should provide an opinion regarding as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed Meniere's disease is related to service, specifically to include the claimed head injuries in service.
The examiner should also offer an opinion as to whether the Veteran's Meniere's disease is at least as likely as not (i.e. 50 percent probability or more) either proximately caused by or aggravated by his service-connected tinnitus.
Aggravation is defined as permanent worsening beyond the natural progression of the disease.
A complete rationale must be provided for any opinions expressed.
3. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative has had an adequate opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).