Citation Nr: 0521789	
Decision Date: 08/11/05    Archive Date: 08/19/05

DOCKET NO.  04-42 599	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Entitlement to service connection for multiple systemic 
atrophy, olivopontine cerebellar degeneration, including as 
secondary to herbicide exposure.


REPRESENTATION

Appellant represented by:	Karen M. Boer, Attorney at law


ATTORNEY FOR THE BOARD

M. C. Graham, Counsel


INTRODUCTION

The veteran served on active duty from March 1963 to February 
1967.

The instant appeal arose from a February 2004 rating decision 
of the Department of Veterans Affairs (VA) Regional Office 
(RO), in Detroit, Michigan, which denied a claim for service 
connection for multi-system atrophy, olivopontine cerebellar 
degeneration.


FINDINGS OF FACT

1.  Affording the veteran the benefit of the doubt, the 
veteran was exposed to Agent Orange while in Thailand.

2.  Affording the veteran the benefit of the doubt, the 
veteran's multiple systemic atrophy, olivopontine cerebellar 
degeneration is attributed to his inservice Agent Orange 
exposure.


CONCLUSION OF LAW

Multiple systemic atrophy, olivopontine cerebellar 
degeneration, was incurred during active service as secondary 
to Agent Orange exposure.  38 U.S.C.A. §§ 1110, 5107 (West 
2002); 38 C.F.R. §§ 3.303, 3.102 (2004).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As an initial matter, the Board does not find that the 
veteran has been prejudiced by any failure on the part of VA 
to fulfill the statutory and regulatory duty to notify and 
duty to assist.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 
38 C.F.R. § 3.159 (2004).  As the Board is providing a full 
grant of the benefit sought in this case, any failure to 
comply with the Veterans Claims Assistance Act of 2000 (VCAA) 
would not be prejudicial to the appellant.  See, e.g., 
Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.  

The veteran has multiple systemic atrophy, olivopontine 
cerebellar degeneration.  He has asserted that this disorder 
warrants service connection.  He has argued that his disorder 
is the result of exposure to herbicides, like Agent Orange, 
in service.  

In determining whether a claimed benefit is warranted, VA 
must determine whether the evidence supports the claim or is 
in relative equipoise, with the veteran prevailing in either 
event, or whether the preponderance of the evidence is 
against the claim, in which case the claim is denied.  
38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 
Vet. App. 49 (1990).

In order to establish service connection for a claimed 
disorder, there must be (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of inservice incurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed inservice disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).  The determination as to whether these requirements 
are met is based on an analysis of all the evidence of 
record, and an evaluation of its credibility and probative 
value.  Baldwin v. West, 13 Vet. App. 1, 8 (1999).

A veteran who, during active military, naval, or air service, 
served in the Republic of Vietnam during the Vietnam era, and 
has a certain listed disability, shall be presumed to have 
been exposed during such service to an herbicide agent (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) (2004).

The Secretary of VA 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 Diseases Not Associated With Exposure to 
Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996).  
Nevertheless, the United States Court of Appeals for the 
Federal Circuit has held that the Veteran's Dioxin and 
Radiation Exposure Compensation Standards (Radiation 
Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 
2727-29 (1984), does not preclude a claimant from 
establishing service connection with proof of direct 
causation, a task "which includes the difficult burden of 
tracing causation to a condition or event during service."  
Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

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. § 3.313 
(2004).

A June 2002 VA treatment record noted that the veteran was 
exposed to Agent Orange in Vietnam and that his job included 
changing the tires of planes which carried Agent Orange.  A 
July 2003 treatment record noted that the veteran reported 
that he did maintenance work on planes and his service 
included a tour of duty in Vietnam.  During his August 2003 
VA examination, the veteran reported that he was stationed in 
Thailand at Udorn Air Force Base during the Vietnam War and 
that he flew over Vietnam.

Requests for information from the National Personnel Records 
Center (NPRC) resulted in a response which indicated that 
that office was unable to determine whether the veteran 
served in Vietnam.  The NPRC was also unable to verify 
whether the veteran was exposed to herbicides.  

A November 1966 service medical records noted that the 
veteran was stationed in Thailand and worked indoors in an 
administrative capacity and was not in contact with any 
chemicals or solvents.  Service personnel records show that 
he was stationed in Thailand from December 6, 1965, to 
November 9, 1966.  In this case, the Board notes that the 
veteran's record of service reflects his receipt of the 
Vietnam Service Medal, although that medal was given to 
servicemembers who served outside of Vietnam as well as those 
that served in-country.  His service personnel records also 
indicate that his assigned duty was as a clerk-typist for a 
vehicle maintenance unit in a combat support group.  Despite 
the notation in the service medical records of lack of 
exposure to chemicals while in Thailand, records from the 
Department of Defense reveal that while the veteran was 
stationed in Thailand, there was a large-scale test program 
of Agent Orange in Thailand in addition to two other field 
tests of Agent Orange.  

Thus, applying the benefit of the doubt rule the Board finds 
that the veteran was in fact exposed to dioxins in service.  
The Board finds that there is satisfactory evidence that the 
veteran had active service sufficiently proximate to 
herbicide testing in Thailand, if not to direct exposure in 
the Republic of Vietnam, to have sustained Agent Orange 
exposure.  

However, as the evidence does not clearly show that the 
veteran "served in the Republic of Vietnam" for VA 
purposes, the presumptive provisions of 38 C.F.R. § 3.307 do 
not apply in this case.  Thus, the veteran must establish 
service connection on a direct basis.

In this regard, the Board has conceded the in-service 
occurrence, exposure to herbicides, and the medical evidence 
of record reveals that he has a current disability.  Notably, 
he first became aware of manifestations of multiple systemic 
atrophy, olivopontine cerebellar degeneration around 1997, 
and the disorder was first diagnosed around July 2000.

Thus, the remaining question in this case is whether there is 
evidence of a nexus between the claimed inservice disease or 
injury and the current disability.  Applying the benefit of 
the doubt rule, the Board answers this question in the 
affirmative.  The veteran's VA treating physician, T. J. 
Quarnstrom, M.D., reported in his notes in July 2004 and 
again in October 2004 that it was his opinion that the 
veteran's multiple systemic atrophy, olivopontine cerebellar 
degeneration, was related to exposure to herbicides in 
service.  In essence, Dr. Quarnstrom explained that he based 
his opinion on the fact that degenerative neurological 
diseases like multiple systemic atrophy develop in older 
individuals, so the veteran's case was unusual in that he was 
much younger than most people who develop multiple systemic 
atrophy, olivopontine cerebellar degeneration.  The Board 
notes that there is no medical evidence which does not 
support the claim.  The only other medical evidence on point 
is an August 2003 VA examination report which described the 
etiology of the disease as "uncertain."  

For these reasons, the Board finds that service connection 
for multiple systemic atrophy, olivopontine cerebellar 
degeneration is warranted.


ORDER

The claim for service connection for multiple systemic 
atrophy, olivopontine cerebellar degeneration, is granted, 
subject to the laws and regulations governing the payment of 
monetary benefits.



	                        
____________________________________________
	F. JUDGE FLOWERS
	Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs