Citation Nr: 1509351	
Decision Date: 03/04/15    Archive Date: 03/17/15

DOCKET NO.  12-28 274	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for avascular necrosis of the bilateral hips, to include as due to Agent Orange exposure.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Sara Kravitz, Associate Counsel






INTRODUCTION

The Veteran served on active duty in the Army from June 1969 through March 1971; and from February 1978 through September 1992.  He has additional periods of unverified active duty service.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee, which denied service connection for avascular necrosis of the bilateral hips.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The Board has considered the records contained in the electronic claims file and the paper claims folder in adjudicating this decision.


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during active duty and is presumed to have been exposed to Agent Orange.

2.  The Veteran's avascular necrosis of the bilateral hips is etiologically related to service, to include his presumed exposure to Agent Orange.


CONCLUSION OF LAW

The criteria for service connection for avascular necrosis of the bilateral hips, to include as due to Agent Orange exposure, have been met.  38 U.S.C.A. §§ 1101, 1110, 1116, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014).  In light of the full grant of the benefit sought on appeal, any error in providing appropriate notice or assistance would be harmless error.

Analysis-Service Connection 

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a 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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Regarding Agent Orange exposure, the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725 (1984) (the 1984 Act) authorized the VA Secretary to establish guidelines and standards for evaluating the scientific studies and to issue regulations for adjudicating claims for VA benefits based on herbicide exposure.  

Congress then passed the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11 (1991) (codified at 38 U.S.C.A. § 1116) (the 1991 Act).  The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have any of several listed diseases, and served on active duty in Vietnam during the Vietnam Era.  38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2014).  
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 containing dioxin, such as Agent Orange, 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) (2014).  

The statute was again amended by the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 987-988 (December 27, 2001).  This amendment established a presumption of herbicide exposure for veterans who served in Vietnam, regardless of whether they developed a presumptive disease.  Thus, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, 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) (West 2014).

Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has held that if the claimed disease is not one of the presumptive diseases listed in 38 C.F.R. § 3.309(e), but exposure to an herbicide is presumed or proven by the evidence, the veteran may establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting medical evidence of a nexus between the disease and his exposure to herbicides during military service (or another incident of service).  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (which holds that a claimant is not precluded from establishing service connection for a disease with proof of direct causation).  Although the Combee decision pertained to radiation claims, the same rationale applies to claims based on herbicide exposure.  See also McCartt v. West, 12 Vet. App. 164, 167 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure).  

In the instant case, the Veteran submitted May 2006 private MRI records noting findings consistent with avascular necrosis of both hips.  Hickson element (1) is accordingly met.
Turning to in-service injury, upon review of the record, the Veteran served in Vietnam during the Vietnam era, as his DD 214 specifically notes Vietnam service from June 1970 through March 1971.  He is entitled to the presumption of exposure to herbicide agents and Hickson element (2) is met.  38 U.S.C.A. § 1116(f) (West 2014).  Therefore, even though the Veteran cannot be granted service connection on a presumptive basis, because avascular necrosis is not one of the diseases listed under 38 C.F.R. § 3.309, he can still be granted direct service connection if his avascular necrosis is more likely than not related to his Agent Orange exposure, or any other incident or injury in service.  See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

Regarding element (3), medical nexus, the question presented is whether there is a relationship between the Veteran's current bilateral avascular necrosis, and his presumed Agent Orange exposure.  The relevant evidence includes a March 2010 opinion from a private physician, Dr. K.D.S. who has been treating the Veteran.  The physician noted that the Veteran had served in the Republic of Vietnam, and stated that it was as likely as not that the Veteran's avascular necrosis of his bilateral hips was caused by his exposure to Agent Orange.  The physician's rationale was that avascular necrosis is the result of a reduction of blood flow to the femoral head, and Agent Orange has an adverse effect on blood vessels.  He also noted that medical literature supports the opinion that Agent Orange and dioxin is capable of lying dormant in the body for years and can at any time effect the blood vessels.  

The Board finds that the March 2010 private clinician's opinion is highly probative.  The opinion is consistent with the other evidence of record and is supported by a detailed rationale.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  There are no negative nexus opinions that contradict this opinion.  While the August 2010 rating decision correctly noted that under the Agent Orange Act of 1991 the presumption of service connection based on exposure to herbicides is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure, the Board notes that the Veteran is not precluded from establishing a presumption of herbicide exposure under the Veterans Education and Benefits Expansion Act of 2001 and then establishing direct service connection by submitting medical evidence of a nexus between the disease and his exposure to herbicides during military service, which the Veteran has done.  See 38 U.S.C.A. § 1116(f) (West 2014); Combee, supra.  

Therefore, the Board finds that all of the requirements for the grant of service connection for avascular necrosis of the bilateral hips, to include as due to Agent Orange exposure, have been met.  


ORDER

Entitlement to service connection for avascular necrosis of the bilateral hips, to include as due to Agent Orange exposure is granted.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs