If you were on the ground in Vietnam the VA law now presumes you were exposed to Agent Orange/Toxic Herbicides, the VA law now recognizes that Agent Orange or Toxic Herbicidescause Chronic Peripheral Neuropathy (or any diagnosis related to PN) so you DO NOT HAVE TO PROVE this by VA law. The one trick the VA and IOM put in the new law is the requirement of EARLY ONSET and this is a bogus requirement. See more below on how to challenge this part of the law.
Here is how to work an application or appeal and the references that you should use in the appeal:
First, you will find all that you need to know in the Vietnam Veterans of America (VVA) bookletto submit an Agent Orange / Toxic Herbicidesclaim for yourself, or for surviving family members of deceased Vietnam veterans, or for biological children of Vietnam veterans born with certain birth defects (listed in the booklet), or for incarcerated Vietnam veterans and information on other benefits available to Vietnam veterans with Agent Orange or toxic herbicides related illnesses.
To print a copy of theVVAbooklet click on this title: The VVA Self Help Guideto Service Connected Disability Compensation for Exposure to Agent Orange: For Veterans and Their Families. Then in the RIGHT column, click on the booklet and print!
Next, we highly recommend that you find a Service Officer from the VVA. Enter youre STATE in the SEARCH form and it will list those for your entire State. Then select the one that is nearest to you.
Effective immediately in 2015there is a new way to file a claimaccording to the VA. Click on the link to see this information.
Direct Basis: If your illness is not listed in the VA list of presumptive illnesses, the law permits the veteran to establish proof of a direct connection between exposure to Agent Orange or Toxic Herbicides, symptoms of a chronic neuropathy, diagnosis and medical history by establishment of reasonable doubt and the principle of high probability, without early on-set.
This process just requires more documentation of the medical tests, diagnosis, and statements that all other causes of your illness have been ruled out and it is more likely than not due to exposure to toxic herbicides used during the Vietnam War. In our guidance on Chronic Peripheral Neuropathy, there are cases listed where this was accomplished to which you can refer and see the decision that was made and why.
In this process of a direct basis,the information on Affidavits andLegal Casesfor AO and Peripheral Neuropathy, prior to the rule of presumptioncould be helpful and you may find these in this booklet by clicking on the link.
FACTS ON AGENT ORANGE AND THE VA RECOGNITION OF CHRONIC PERIPHERAL NEUROPATHY.
For decades the VA with support from the Institute of Medicine denied that there could be chronic neuropathy from agent orange exposure. Then in 2010 after years of false claims the IOM acknowledge that they were wrong and the VA now recognizes Chronic PN from Agent Orange if you were on the ground in Vietnam with one catch which I will discuss below and how to defeat the VA on early onset.
Peripheral Neuropathy is now listed as presumptive to AO exposure see the ruling:
If your neuropathy is secondary to a VA recognized disease then you do not have to deal with the early onset requirement in VA law. Examples would be diabetes (Prediabetes is a recognized cause of neuropathy), cancer, treatments for cancer and so forth which the VA recognizes as due to Agent Orange exposure.These are common recognized conditions that cause chronic neuropathy. You can quote or refer to Dr. Norman Latovs book to show this as the case if needed. Norman Latov MD, PhD, Peripheral Neuropathy: When the Numbness, Weakness, and Pain Wont Stop, 2007 AAN Press
If the above is not the case, I would submit an appeal with the following statement in response to any legal claimby the VA.
NOTE: When you submit a statement to the VA it is wise to do so using the following statement at the end by your signature and then have it notarized:
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)
Peripheral Neuropathy is presumptively related to exposure to Agent Orange or toxic herbicides and no proof of this relationship as a cause is required by the current VA law. This is especially true when medicine is not able to establish another cause for the Neuropathy and often terms it idiopathic or of unknown cause. The VA law does require the early onset at 10% disabling levels within 1 year after exposure. However, please be advised that following the war the medical establishment did not have the clinical knowledge to diagnose, treat or even knowledge to recognize the symptoms of Peripheral Neuropathy in the 1960s, 70s let alone at the 10% disabling level. The symptoms were often misdiagnosed as symptoms of other medical issues or worse dismissed. Often medical personnel would report these symptoms as of no consequence while even failing to record them under the circumstances of the battlefield. Add to this the veterans desire to do nothing but return home, ignoring the symptoms.Little research was available regarding the effects of Agent Orange on veterans during their service. Furthermore, it is now know that the component of arsenic in Agent Blue used extensively during the Vietnam War following long term exposure will cause a delayed onset of a progressive chronic sensorimotor axonal polyneuropathy and therefore rules out any need for the early onset in the law since nothing has ever been evaluated given long term exposure to arsenic and the other compounds in the various components of Agent Orange. The following references support this statement.
Use the following references in YOUR APPEAL to support the above statement regarding early on-set.
1.No books for patient help to even recognize the symptoms of Peripheral Neuropathy, were available to the veterans until 2007: See: Norman Latov MD, PhD, Peripheral Neuropathy: When the Numbness, Weakness, and Pain Wont Stop, 2007 AAN Press AND the book reveals the difficulty in diagnosis in the years during and following the Vietnam War. Books on Peripheral Neuropathy
2.In 2012, Neurology struggles to diagnose Peripheral Neuropathy even in 2015: SEE: How to Diagnose Peripheral Neuropathy? No Simple Answers by Mark Moran, Neurology Today, March 15, 2012.
3. In 2001, Toxic Neuropathies were often dismissed by the principle that once removed from the toxin; the neuropathy resolved and did not become chronic! In 2010 the Institute of Medicine and the VA law recognized Agent Orange related toxic neuropathy years after exposure and this conclusion followed years of denial by the IOM and the VA. See: Peripheral Neuropathy: A Practical Approach to Diagnosis and Management by Dr. Didier Cross, M.D., Editor, 2001 and Chapter 21, page 387, Identification and Diagnosis of Toxic Polyneuropathies Dr. Alan Berger.
4. Thomas H. Brannagan, MD, Director, Neuropathy Center of Excellence, Columbia University, as quoted in the DVD production Coping with Chronic Neuropathy, 2010, (Lecture by LTC Eugene B Richardson, USA (Ret) who went for four decades before diagnosis and treatment with chronic neuropathy that has left him VA recognized 100% disabled due to Agent Orange exposure and Peripheral Neuropathy and a link to hisstory is listedin a following paragraph: One Mans Journey with Neuropathy) by the Network for Neuropathy Support, Inc., dba Neuropathy Support Network. For years medicine did not have the tools to diagnose or treat Neuropathy and the patient was left on their own Note: Today this DVD is endorsed by leading Neuromuscular Neurologists in the field of Peripheral Neuropathy, Psychiatrists, Psychologists, Nurses, Dermatologists, Retired General Officers, other senior officers of the U.S. Army and other medical professionals as well as by patients worldwide who are just now beginning to grasp the clinical aspects of Peripheral Neuropathy.
5. In December 2002, in the Neurology 59 (Supplement 6), Norman Latov, MD, PhD, et el, published a document regarding the difficulties in the diagnosis and treatment of immune-mediated neuropathies, titled Advances in the diagnosis and treatment of CIDP and related immune-mediated neuropathies.
6. The Journal of the Peripheral Nervous System the official Journal of the Peripheral Nerve Society, Volume 17, Supplement 2, May 2012, editor David R. Cornblath of John Hopkins University School of Medicine, Baltimore, MD, in the various scientific articles notes not only the current research that is being done, but the lack of the medical establishments ability to diagnose and treat many of the chronic neuropathies even in 2012 let alone in 1960 and 1970. Dr. Thomas H. Brannagan III of Columbia University, College of Physicians and Surgeons, New York, NY, states in the opening article, Many patients are not aware of their diagnosis, are not given the diagnosis or (are) treated, or the diagnosis is delayed and this is in 2012! Currently, the only treatments available for neuropathy are aimed at treating the underlying medical conditions that cause the neuropathy or treating symptoms such as pain. Neither treats the actual nerve fiber dysfunction or fiber loss or helps nerve fibers regenerate.Continued research into the underlying mechanisms of neuropathyare needed to address this unmet medical need among patients with neuropathy and again this is the science in 2012 not 1960 and 1970 when no tools existed to diagnose the patients neuropathy let alone clinical knowledge to recognize the many symptoms of neuropathy following exposure to Agent Orange.
7. Louis Weimer, MD, recorded on DVD, A lecture on Autonomic Neuropathy Under Recognized Syndrome, January 17, 2001
8. In the Textbook of Peripheral Neuropathy by Peter D. Donofrio, M.D., published by DEMOS Medical, 2012 (numerous other authors contributing to the work) (Professor of Neurology, Chief of the Neuromuscular Section, Vanderbilt University Medical Center, Nashville, TN), notes that acute arsenic exposure is associated with sensorimotor axonal polyneuropathy see pages 89-91 in the text article Occupational, Biologic, and Environmental Toxic Neuropathies by James W Albers, M.D. PhD, Emeritus Professor of Neurology, University of Michigan Health System, Ann Arbor, Michigan, for full description of symptoms and treatments. Arsenic in what was called Agent Blue was used to destroy the food supplies throughout Vietnam from 1962 to 1971. The use of arsenic was not condemned for use by the FDA until 2011 when a peer-evaluated study was completed and 89 forms of arsenic out of 102 compounds were removed from the market because they convert from organic to inorganic arsenic. Bottom line, arsenic is a heavy metal, like lead, and all heavy metals are dangerous and carcinogenic causing Chronic Peripheral Neuropathy along with other damage to the human body. To read the dangers and damages done by arsenic in Agent Blue along with the many warnings that were ignored by those responsible, see the article Agent Blue by Loana Hoyman in the May/June 2015 issue, Volume 35. No. 3, of the Vietnam Veterans of America publication.
9. Arsenic in the Environment: Blue by Loana Hoylman published in VVA Veteran (Vietnam Veterans of America) July/August 2015 Vol 35, No. 4 notes that the World Health Organization said in 2012 that Arsenic contaminated water is the greatest threat to health in the world reporting that Arsenic is a known neurotoxin. Arsenic was the main component in Agent Blue used in Vietnam. The use of Arsenic in agricultural use was banned in 1980 with more stringent ban confirmed in 2014 when evidence of environmental poisoning was confirmed. While we are all exposed to Arsenic, Vietnam Veterans for a year or more were exposed to Agent Blue and are at the highest risk for the cumulative effects of Arsenic from food and water. The problem with arsenic is that it stays in the (human) system. It accumulates in the body as one consumes contaminated food and comes in contact with a contaminated environment especially if exposure is over a long period of time such as was true for the veteran of Vietnam.
10. In 2003 FOCAL PERIPHERAL NEUROPATHIES by Geraint Fuller: See J Neurol Neurosurg Psychiatry 2003;74:ii20-ii24 doi:10.1136/jnnp.74.suppl_2.ii20 Dr GN Fuller, Department of Neurology, Gloucester Royal Hospital, Great Western Road, Gloucester GL1 3NN, UK; geraint@Fullerg.demon.co.uk focal peripheral neuropathiesFocal peripheral neuropathies are not at the fashionable end of the neurological street. However they are important, as they are very common, sometimes disabling, and often treatable. They can also be a source of confusion when they occur in patients with other neurological diseases. The management of focal peripheral neuropathies is based on certain general principles with a relatively limited backing from clinical trials. These principles relate to understanding the:
11. VA: Presumptive Service Connection and Disability Compensation, November 18, 2014 7-5700 R41405. This Congressional Service Report shows clearly the serious problems of historical fact in the early onset rule in VA law specifically for Peripheral Neuropathy.This requirement is a bogus requirement that stands in the face of facts, not the least of which is that the medical establishment, during the years of and following the Vietnam War, could not recognize the symptoms of peripheral neuropathy let alone at the 10% disabling level as required by VA law since 2010. This document shows clearly that there was no medical basis to make a determination as to early onset retroactive to the period of the Vietnam War, as to making any sound conclusions, establishing standards, diagnostic codes, disability determinations or for establishing an absolute mandatory time specific criteria for symptoms or a diagnosis for Peripheral Neuropathy, due to exposure to Agent Orange/Agent Blue and other toxins in the decade of and for many years following the Vietnam War.
12. Include these statements witha copy of the document One Mans Journey with Neuropathy showing by clear examplethe bogus nature of the early onset requirement.
In 2013 the VA began recognizing that exposure to Agent Orange (AO) causes Chronic Peripheral Neuropathy. However the Institute of Medicine (IOM)added a requirement of early on-set to connect the condition with AO exposure. Yet during the decades of the Vietnam War and after,even to the current year, clinical diagnosis and recognition of the symptoms of PN are just now being recognizedand diagnosis and treatmentremain difficult.
For decades with the symptoms of chronic neuropathy clearly recorded in LTC Richardsons medical records, the VA denied all of this information for six years. The VA reviewers did this out of ignorance of both the symptoms of PN and the difficulty of diagnosis by noting that the symptoms, while clearly in his medical records, by blaming the symptoms on other medical conditions.
Then after his Neuromuscular Neurologist submitted the facts from his service medical records, the VA reviewers lied four times about the clear statements in his medical records stating that these facts were not in his medical records.
Over six years later the VA is still delaying his request for a hearing on these issues, so that his claim is retroactive to his first submission of his original application and the fact that all the information in regards to these issues are included in his original submission.
(Attach a copy of this career officers story (One Mans Journey with Neuropathy) to your submission as it shows the bogus nature of the early onset requirement.)
The experience of LTC Eugene B Richardson, USA (Retired) with currently 100% VA disability due to Chronic Neuropathy after service in Vietnam in 1967-68 is told in this story and shows the lack of medical science and limits of medicine in general to recognize the symptoms of neuropathy and to diagnose neuropathy, let alone at the 10% level of disability.
Helpful Doctors Statement: A statement from a doctor to the effect that given that chronic peripheral neuropathy is now recognized as presumptive to exposure to Agent Orange or toxic herbicides by the VA and given that all other causes of the patients neuropathy have been ruled out by testing, it is likely greater than a 50% probability that the patients peripheral neuropathy is more likely than not due to exposure to Agent Orange and toxic herbicides.
10. Board of Veterans Appeals cases:
Make reference to these legal cases where limited information was used to prove the veterans cases on a DIRECT basis before the VA changed the law to recognize Chronic Peripheral Neuropathy:a. Citation Nr. 0606156 03/03/06 Docket No. 04-19 301 On Appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona
b. Citation Nr. 0802669 01/24/08 Docket No. 97-33 277 On Appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia
c. Citation Nr. 0306225 04/01/03 Docket No. 97-18 169 On Appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
d. Citation Nr. 0821251 06/27/08 Docket No. 05-17 482 On Appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee
APPENDEX
COPIES OF SUCCESSFUL LEGAL CASES (Symptoms developed after the one year presumptive period)
1. Case from Phoenix, Arizona
Citation Nr: 0606156 Decision Date: 03/03/06 Archive Date: 03/14/06
(DOCKET NO. 04-19 301) DATE On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona
THE ISSUES
1. Entitlement to service connection for peripheral neuropathy of both lower extremities, claimed as nerve damage to the legs and feet and also as circulatory damage to the feet as due to Agent Orange.
2. Entitlement to service connection for skin cancer, claimed as spots on the face, arms, and hands that tingle and also as nerve damage.
REPRESENTATION
Veteran represented by: Arizona Veterans Service Commission
WITNESS AT HEARING ON APPEAL
Veteran ATTORNEY FOR THE BOARD
J.W. Kim, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1963 to March 1966, including service in the Republic of Vietnam.
These matters come before the Board of Veterans Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In a January 2003 rating decision, the RO denied service connection for peripheral neuropathy of the left and right lower extremities. In a December 2003 rating decision, the RO continued the prior denials of service connection for peripheral neuropathy and denied service connection for skin cancer, claimed as spots on the face, arms, and hands that tingle and also as nerve damage. The veteran timely perfected an appeal of these determinations to the Board. In September 2005, the veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO.
The issue of service connection for skin cancer, claimed as spots on the face, arms, and hands that tingle and also as nerve damage, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
Resolving all reasonable doubt in favor of the veteran, peripheral neuropathy of both lower extremities is related to service, specifically to exposure to Agent Orange.
CONCLUSION OF LAW
Peripheral neuropathy of both lower extremities was incurred in active service. 38 U.S.C.A. 1101, 1110, 1112, 1113,1116, 5107 (West 2002); 38 C.F.R. 3.102, 3.303, 3.307,3.309 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the agency of original jurisdiction has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000. 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. 3.102, 3.156(a), 3.159 and 3.326(a) (2005).
To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran in proceeding with this case given the favorable nature of the Boards decision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. 1110 (West 2002); 38 C.F.R. 3.303(a) (2005).
Service connection may also be awarded for a chronic condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumptive period under 38 C.F.R. 3.307) and the veteran presently has the same condition; or (2) a chronic disease manifests itself during service (or within the presumptive period) but is not identified until later and there is a showing of continuity of symptomatology after discharge. 38 C.F.R. 3.303(b) (2005); see 38 C.F.R. 3.307, 3.309 (2005).
A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. 3.309(e), 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)(6)(iii).
If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. 3.307(a)(6)(iii) 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 II Diabetes; Hodgkins disease; multiple myeloma; non-Hodgkins lymphoma; acute and sub-acute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposis sarcoma, or mesothelioma). 38 C.F.R. 3.309(e); 66 Fed. Reg. 23,166, 23,168-69 (May 8, 2001)
The term acute and sub-acute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Note 2, 38 C.F.R. 3.309(e).
The veteran contends, in essence, that he has peripheral neuropathy of both lower extremities due to exposure to Agent Orange during service. He asserts that symptoms developed in approximately 1970 and that they have gradually become worse, but that he did not seek treatment until April 2002.
The record shows that the veteran served in the Republic of Vietnam during the Vietnam era. Thus, exposure to Agent Orange is presumed. 38 C.F.R. 3.307(a)(6)(iii). Initially, the Board notes that only acute and sub-acute peripheral neuropathy are recognized by VA as diseases associated with exposure to Agent Orange. 38 C.F.R. 3.309(e).
In this regard, the record shows that the veteran does not have acute or sub-acute peripheral neuropathy as defined by VA regulations. The fact that the veteran is not entitled to the foregoing regulatory presumption of service connection does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
After review, the Board notes a December 2002 VA neurological disorders examination report and a July 2003 letter from Dr. Durham, the veterans private treating physician.
The VA examination report reflects the examiners difficulty in determining the etiology of the veterans peripheral neuropathy. The examiner stated that there is no clear cut evidence that exposure to herbicides caused the veterans peripheral neuropathy and acknowledged the discomfort of defining the veterans disorder as a neuropathy of unknown etiology. The examiner explained that unfortunately many peripheral neuropathies are of unknown etiology and to arbitrarily assign one to a caustic agent does not seem to be the best medical decision.
Dr. Durham begins his letter by noting that he has taken several comprehensive histories from the veteran and can find no other type of exposures either personal or industrial that could potentially account for the veterans neuropathy. He also noted reviewing the veterans VA medical records, including the above examination report, his own medical records, VAs Guide on Agent Orange Claims, and the veterans rating decision. Dr. Durham acknowledged that the veterans claim was denied because he did not complain of symptoms within the very short time period cited by VA after exposure to herbicides. He stated that it is clearly documented in the medical literature that neuropathy can be latent for a period of up to decades, and a denial based on short term exposure and short term initiation of acute complaints seems to be somewhat arbitrary. He opined that, given that the veteran does not have any evidence of any of the other major problems with which neuropathy is often associated, there is at least a 51 percent probability that the veterans neuropathy may be directly linked to exposure to dioxin/Agent Orange.
The Board acknowledges that the veterans claims file was not made available to Dr. Durham. The Board observes that review of the claims file is only required where necessary to ensure a fully informed examination or to provide an adequate basis for the examiners findings and conclusions. See VAOPGCPREC 20-95; 61 Fed. Reg. 10,064 (1996).
In this case, the Board finds that resort to the veterans claims file was not necessary because the veteran provided an accurate account of his medical history, thus ensuring a fully informed examination. In this regard, the Board observes that the veterans account as related to Dr. Durham essentially reflected the evidence of record at that time.
Further, Dr. Durham did review several pertinent documents, including the VA examination report. Given the above, and resolving all reasonable doubt in favor of the veteran, the Board finds that the veterans peripheral neuropathy of both lower extremities is due to his exposure to Agent Orange during service.
ORDER
Service connection for peripheral neuropathy of both lower extremities is granted.
2. Case from Atlanta, Georgia.
Citation Nr: 0802669
Decision Date: 01/24/08 Archive Date: 01/30/08
(DOCKET NO. 97-33 277 ) DATE On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUE
Entitlement to service connection for peripheral neuropathy, to include on a direct basis and as secondary
to Agent Orange Exposure.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans Services
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Tzu Wang, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1948 to August 1969. He served in the Republic of Vietnam from September 4,1967 to September 4, 1968.
This matter initially came before the Board of Veterans Appeals (Board) from a January 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In January 1998, the appellant and his spouse testified at the RO before a Decision Review Officer; a copy of the transcript has been associated with the claims file.
Subsequently, in December 1998 and August 2003, the Board remanded this case to the RO for further evidentiary development. In September 2007, the Board referred this case to the VAs Veterans Health Administration (VHA) for a medical opinion. The specialists opinion, dated October 18,2007, has been associated with the claims folder and, as required by law and regulation, the Board provided the appellant and his representative copies of this opinion and afforded them time to respond with additional evidence or argument. 38 C.F.R. 20.903(a) (2007). The case is now before the Board for further appellate consideration.
FINDING OF FACT
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