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jdave wrote:Hey Gary,
Good to see you. It seems like a while. Sounds like your attitude is holding up even if the body isn't. Keep the faith, Brother, we're too tough to
give it up!
Honor and Courage
2/8 Cav 1967
Jul 31 11 1:50 AM
I am a Viet Nam Vet and I left there in 1970. Starting in 1971 I have had a very hard cough and bleeding of the lungs for the past 30 some odd years. It happens sometimes twice a year for 2-3 weeks at a time. The doctors treat me for what ever it is but they don't have an explanation. Along with it comes chills and fever. Could this have been picked up in Viet Nam?
Dec 19 11 7:51 PM
Date: 02/15/08 Archive Date: 02/26/08
NO. 06-18 279 ) DATE
appeal from the
of Veterans Affairs Regional Office in Detroit,
to service connection for the cause of the
represented by: Veterans of Foreign
AT HEARING ON APPEAL
FOR THE BOARD
veteran served on active duty from March 1968 to March
1971. He died in May 2003. The appellant is the veteran's
matter comes to the Board of Veterans' Appeals (Board)
appeal from a rating decision dated in August 2005 by the
of Veterans Affairs (VA) Regional Office (RO) in
case was the subject of a June 2007 hearing before the
Veterans Law Judge.
her June 2007 Board hearing, the appellant withdrew her
for service-connected burial benefits. Accordingly,
Board no longer has jurisdiction over this issue and the
as to this issue is dismissed. See 38
20.101(d) & 20.204(b) (2007).
preponderance of the medical evidence of record indicates
the veteran's terminal interstitial fibrosis was at
as likely as not caused by exposure to herbicide agents
his period of active service in Vietnam.
criteria for service connection for the cause of the
death, interstitial pulmonary fibrosis, have been
met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §
AND BASES FOR FINDINGS AND CONCLUSION
Claims Assistance Act of 2000
November 9, 2000, the President signed into law the
Claims Assistance Act of 2000 (VCAA), Pub. L. No.
114 Stat. 2096 (2000). This law
of VA with respect to the duty to assist and
an enhanced duty to notify a claimant as to the
and evidence necessary to substantiate a claim
VA has a duty to notify the appellant of any
and evidence needed to substantiate and complete
claim. 38 U.S.C.A. §§ 5102, 5103 (West
2002); 38 C.F.R. §
3.159(b). Second, VA has a duty to assist the appellant
evidence necessary to substantiate a claim.
§ 5103A (West 2002); 38 C.F.R. § 3.159(c).
discussed, sufficient evidence is of record to grant this
claim. Therefore, no further notice or development
respect to this issue.
establish service connection for the cause of the
death, the evidence must show that disability
in or aggravated by service either caused or
substantially or materially to the cause of
death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. §
a service-connected disability to be the cause of death,
must singly or with some other condition be the immediate
underlying cause, or be etiologically related.
connected disability to constitute a contributory
it is not sufficient to show that it causally shared
producing death, but it must be shown that there was a
connection may be granted for a disability resulting
disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110. Service connection may be
for any disease diagnosed after discharge, when all
evidence, including that pertinent to service,
that the disease was incurred in service.
order to prevail on the merits on the issue of service
there must be medical evidence of current
medical or, in certain circumstances lay,
of in-service incurrence or aggravation of a disease
injury; and medical evidence of a nexus between the
in-service disease or injury and the present
disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.
Hickson v. West, 12 Vet. App. 247, 253 (1999).
purposes of establishing service connection for a
resulting from exposure to a herbicide agent, a
who, during active military, naval, or air service,
in the Republic of Vietnam between January 1962 and
1975, shall be presumed to have been exposed during such
to a herbicide agent, absent affirmative evidence to
contrary demonstrating that the veteran was not exposed
any such agent during service. 38
U.S.C.A. § 1116(f)
2002). Moreover, the diseases listed at
38 C.F.R. §
shall be presumed to be due to exposure to such
agents if they have become manifest to a degree of
percent or more at any time after service, except that
or other acneform disease consistent with
porphyria cutanea tarda, and acute and subacute
neuropathy must have become manifest to a degree
10 percent or more within one year after the last date on
the veteran was exposed to an herbicide agent during
service. 38 U.S.C.A. § 1116; 38 C.F.R. §
3.307(a)(6)(ii). In addition, the United States Court of
for the Federal Circuit has determined that a
is not precluded by presumptive laws and regulations
establishing entitlement to service connection for the
of the veteran's with proof of actual direct causation.
v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
standard of proof to be applied in decisions on claims
veterans' benefits is set forth in 38 U.S.C.A. § 5107
2002). A claimant is entitled to the
benefit of the
when there is an approximate balance of positive and
evidence. See 38 C.F.R. § 3.102. When a claimant
benefits and the evidence is in relative equipoise, the
prevails. See Gilbert v. Derwinski, 1
Vet. App. 49
(1990). The preponderance of the evidence must be
claim for benefits to be denied. See
Alemany v. Brown, 9
App. 518 (1996).
including a period of service in Vietnam from February
1969, to April 11, 1969. Based on his
service in the
of Vietnam, he is presumed to have been exposed to
herbicide agents, including Agent Orange.
1116(f); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).
the veteran's idiopathic pulmonary fibrosis is not a
for which presumptive service connection based on
Orange exposure is available, the appellant is not
by presumptive laws and regulations from
service connection for the cause of the
death with proof of actual direct causation.
evaluation of the veteran's lungs and chest was
at his pre-induction examination in August 1967. As
above, he entered service in March 1968.
records in April 1968 show the veteran was
from April 21, 1968, to April 25, 1968, for an
respiratory infection. An April 21,
1968, chest X-ray
an increased lung marking in the right hilar region,
no pneumonic consolidation. He was
released to duty on April 25, 1968.
veteran's service medical records are otherwise silent
diagnosis or treatment of a disorder of the lungs. At
February 1971 service separation examination, clinical
of the lungs was normal and a chest X-ray was
of private treatment indicate that as of January 2000
veteran had mild interstitial lung disease.
recommended that the veteran be referred for a
consultation. An imaging study conducted
2000 indicated that the veteran had a minimal to
degree of pulmonary fibrosis. In May
2000 he was
chest pains but had no shortness of breath.
2000 he was diagnosed as having a form of
which by December 2001 had evolved into
joint disease. By September 2002 he was
continuing treatment for diagnosed rheumatoid
arthritis. His condition progressed rapidly and by
he was diagnosed as having end-stage pulmonary fibrosis.
veteran's May 2003 death certificate indicates that the
of death was idiopathic pulmonary fibrosis of
2 years' duration, due to (or as a consequence
rheumatoid arthritis of approximately 3 years' duration.
respiratory distress syndrome and bilateral
are listed as other significant conditions
to death but not resulting in the underlying
a letter dated in May 2005, cardiothoracic surgeon James
Caralis, D.O., noted that he was the operating thoracic
who biopsied the veteran's lung in April 2003.
time, the veteran was hospitalized in progressive
failure with bilateral interstitial changes
by X-ray. The veteran was then diagnosed
biopsy with idiopathic pulmonary fibrosis.
that the veteran eventually died during that hospital
stay. He asserted that "[i]t is my medical
the pulmonary fibrosis that [the veteran] suffered
was at least as likely as not due to Agent Orange
and asserted that "idiopathic fibrosis can be
by Agent Orange exposure." Because
Dr. Caralis is a
surgeon who has expertise in obtaining biopsies for
purpose of determining the etiology of lung illnesses,
Board affords this physician's opinion a significant
of probative weight.
a letter dated in July 2005, Daniel White, M.D., who was
veteran's treating internal medicine physician, opined
because of the veteran's service in Vietnam, it was at
as likely as not that the veteran's terminal pulmonary
was due to exposure to Agent Orange.
the appellant has submitted several articles
publications from the Internet from medically oriented
and what appear to be peer-reviewed medical or
publications, which generally appear to be
and of significant probative weight. One
a scientific study concluding that there is no safe amount
dioxins - that exposure to any amount of dioxins does
damage. Other articles indicate that pulmonary
interstitial lung disease may be caused by exposure to
toxins, poisons, and environmental exposures.
article specifically indicates that lung disease may
associated with Agent Orange exposure.
There is also an
of a published 1986 medical case report in which it
specifically concluded that "chronic progredient diffuse
damage [was] probably related to exposure to
herbicides." The specific exposure to herbicides noted in
1986 case report was that of a Vietnam veteran who served
defoliated areas of Vietnam. Additional
dioxins harm the immune system and the lungs, and
the physiological and chemical processes by which
occurs. While these writings are not
specific enough to
as an opinion of a medical nexus between
to herbicides in service and his terminal pulmonary
they do serve to generally indicate that the
medical nexus opinions provided by Dr. White and Dr.
are medically plausible.
a June 2007 Board hearing, the veteran's surviving spouse,
licensed practical nurse, expressed her opinion that the
terminal pulmonary fibrosis was etiologically
to exposure to herbicides in Vietnam.
that she was "not an expert in any particular
but did submit additional medical articles that she
supported her theory of etiology. Her
that the veteran's exposure to herbicides in Vietnam
his immune system, causing rheumatoid arthritis,
in turn, pulmonary fibrosis. The Board
of the veteran's surviving spouse limited weight
on her experience as a nurse, but without any specific
of medical expertise.
Board finds that the preponderance of the medical
indicates that the veteran's terminal pulmonary
was at least as likely as not caused by exposure to
agents during his period of active service in
Vietnam. The opinions to this effect from Dr. White,
treating physician, and Dr. Caralis, who conducted
biopsy of the veteran's lungs, are the most expert and
reasoned specific medical opinions of record.
and publications submitted by the veteran's
spouse serve to demonstrate that the medical
provided by Dr. White and Dr. Caralis are medically
and based on a recognized theory of etiology.
of the foregoing, entitlement to service connection for
cause of the veteran's death is warranted.
death is granted.
Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Apr 9 12 5:15 PM
Sep 14 12 11:10 AM
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