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Need Advice On Chloracne Claim For Vietnam Veteran


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14 replies to this topic

#1 Troy Spurlock

 
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Posted 20 February 2010 - 09:52 PM

Since 2008 I have been working with due diligence to assist a Vietnam veteran in his claim for service connection for chloracne.

As with any typical Vietnam veteran, many blew off the VA system because of the way they were treated by Americans upon their return; not to mention the fact that the VA outrightly denied their claims regardless of their service.

Anyhow, long story short, we have lay and expert evidence - even a VA C&P examiner giving a 'probable' diagnosis of chloracne (which the CFRs and BVA substantiate is all that is needed from a physician to substantiated a service connected claim) - but the VA we're dealing with is arbitrarily dismissing it with contradictory statements. Stating they cannot ignore a medical opinion but they can disregard it all the same.

I would certainly appreciate any input from any Vietnam veteran who has successfully achieved a service-connected disability rating with family, friends, and VA C&P examiner information substantiating the veteran's claim for such.

Thanks!

Troy Spurlock
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#2 jbasser

 
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Posted 20 February 2010 - 10:01 PM

Do they have any negative evidence on this issue?
If not then you are going to have to get this issue out of the RO and to the BVA or higher. Also ask the RO where they went to medical school?

James Cripps has been thriugh this one and Maybe he can add some input.

J

#3 Troy Spurlock

 
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Posted 20 February 2010 - 10:15 PM

Do they have any negative evidence on this issue?
If not then you are going to have to get this issue out of the RO and to the BVA or higher. Also ask the RO where they went to medical school?

James Cripps has been thriugh this one and Maybe he can add some input.

J


Question 1: Do they have any negative evidence on this issue?

That is a definite NO! The VA is making allegations they cannot and have not proven (i.e. they continuously fail to meet their burden of proof to the contrary).

Second point, we are taking it out of the RO and to the BVA directly. I am currently working on dissecting the VARO's ignorant response right now; and we will be appealing the the BVA (2009 decisions searched thus far are similar to this case and I believe the BVA will rule in our favor).

The RO actually stated in this denial that the RO, though it cannot deny a C&P examiners opinion, can still deny that opinion and likewise deny the veteran's claim. How's that for an implicit contradiction!?!

T.S.

#4 Pete53

 
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Posted 21 February 2010 - 12:40 AM

It won't be the first time it has happened. Just keep after them and hopefully the Veteran will get their hard earned benefits.

#5 jbasser

 
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Posted 21 February 2010 - 10:42 AM

Question 1: Do they have any negative evidence on this issue?

That is a definite NO! The VA is making allegations they cannot and have not proven (i.e. they continuously fail to meet their burden of proof to the contrary).

Second point, we are taking it out of the RO and to the BVA directly. I am currently working on dissecting the VARO's ignorant response right now; and we will be appealing the the BVA (2009 decisions searched thus far are similar to this case and I believe the BVA will rule in our favor).

The RO actually stated in this denial that the RO, though it cannot deny a C&P examiners opinion, can still deny that opinion and likewise deny the veteran's claim. How's that for an implicit contradiction!?!

T.S.


Troy, Pete is right. You need to keep your focus and your resolve to get this done. Do you have an attorney? I may consider getting one because there are points of lelgal expertise the attorneys can relate to on your claim.

J

#6 Philip Rogers

 
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Posted 21 February 2010 - 11:24 AM

The main problem I see is that VA requires that the chloracne be 10% disabling within one year of exposure to AO and it's now some 40yrs later.

pr

#7 evandc

 
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Posted 21 February 2010 - 04:32 PM

PR

Thanks for your comment..I was going to post that it was long, long, tough battle to win for 10%.
I'm so good at pissing people off I didn't want to upset everyone. Also, I look at the "Big Picture"-most vets in my group have PTSD, Cancer, Heart Problems, Diabetes ll, Kidney Problems, PN & on & on. Many of them have several of these problems. Could just be my hard head, but I'm for going for the big numbers. This 10%,10% Chinese Math drives me crazy. Give me 100% plus some SMC Award any day. Yes, I know not everyone has the 100% conditions, but guess it's just me.

Thanks,

Don

#8 jbasser

 
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Posted 21 February 2010 - 06:43 PM

I Didnt see the 1 year denial on James Cripps VA decision.

http://www4.va.gov/v...es5/0941553.txt

I think with the medical evidence and a good Medical Nexus then you should be service connected.

J

#9 Troy Spurlock

 
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Posted 21 February 2010 - 08:11 PM

The main problem I see is that VA requires that the chloracne be 10% disabling within one year of exposure to AO and it's now some 40yrs later.

pr


I've reviewed a lot of BVA rulings granting chloracne from the date this veteran I'm helping originally filed to 2009; and in all they accepted lay evidence (veteran's own statements and/or family and friends statements) establishing that the chloracne was there and within one year of separation.

The VA has already admitted, repeatedly, that this veteran served in Vietnam and is presumed to have been exposed to AO. However, they simply refuse to accept lay evidence or their own C&P examiner's "probable" diagnosis of chloracne (which some BVA decisions I've read granting chloracne claims did so on such probable diagnoses, and even less evidence than what we've submitted).

Any new and material evidence we send, they say it is not new and material meerly because it echos previously submitted evidence. In short the VA is saying there is no evidence we can submit to change their mind, even if it comes from different people not already on record attesting to the veterans chloracne.

The VA here is simply refusing to admit they are wrong despite the evidence proving the contrary.

#10 jamescripps2

 
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Posted 05 June 2012 - 12:48 AM

I probably did not see or respond to this post in time to do you any good but here it is. In order to win a claim for chloracne, the claim must be submitted for direct exposure. 38 CFR 3.303 D allows that any disease may be claimed at anytime post discharge.

If you choose to file under the presumptive of exposure, then you have to contend with the cloracne one year rule as laid out for you at
38 CFR 3.307 and 3.309.

My advice would be to change the claim from presumptive exposure to direct exposure. You will then need to show where in Vietnam your veteran was and do your DD as to where exactly AO was used and how he was exposed. Just use the spray maps from the websites and VA,s own site.

If you elect to do this, just write out your intentions on a VA form 21-4138 and submit it. Clearly make it known that you are changing from presumptive exposure to direct exposure and send along with the 4138 a copy of the exposure evidence. do not spare highliting in yellow your intention. You do not have to refile and the change should not slow the claim.

James Cripps

#11 RonP

 
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Posted 05 June 2012 - 11:33 PM

I went through the process, filed the claim, was denied, and appealed....My legal adviser presented evince of skin cancer related to chloracne.
This was a 5 year fight...
To no avail.
I forked out 10,000 in cancer treatments....bottom line they will always return to. You have to file the claim 365 day within discharge date...if you did not, you will not win.
My experience
RP

#12 Troy Spurlock

 
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Posted 24 June 2012 - 01:51 PM

James and Ron,

I actually won this claim for the Vietnam veteran I was helping.

It was won not for chloracne, but acne vulgaris (merely because it was noted on the entrance exam and the RO kept denying because of this) aggravated by AO (in srevice) exposure. Either way, I count it as a win for this veteran who has fought the VA since 1974 on this when he got out and was all but done with the VA until we met.

I also got his PTSD increased fro 10 to 50% as well...

THanks for the feedback nonetheless, as it will help for future help that I may provide others.

#13 RonP

 
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Posted 28 June 2012 - 08:53 AM

James and Ron,

I actually won this claim for the Vietnam veteran I was helping.

It was won not for chloracne, but acne vulgaris (merely because it was noted on the entrance exam and the RO kept denying because of this) aggravated by AO (in srevice) exposure. Either way, I count it as a win for this veteran who has fought the VA since 1974 on this when he got out and was all but done with the VA until we met.

I also got his PTSD increased fro 10 to 50% as well...

THanks for the feedback nonetheless, as it will help for future help that I may provide others.

You definitely need an AT A BOY for that .....oooo....Rahhhh

#14 Berta

 
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Posted 02 July 2012 - 09:10 AM

“I went through the process, filed the claim, was denied, and appealed....My legal adviser presented evince of skin cancer related to chloracne. “

That is like comparing an apple to a pear. Possible but these are two different diagnosis.

I interviewed James Scripps at our SVR shows here I think o maybe another radio show ? and I believe his full BVA decision is here too. His opinions are solid.

James ,like Kurt Priessman , the firstThailand AO veteran, did an overwhelming amount of work on his claim and even went to his prior Duty station to continue that research to become the First CONUS AO veteran.

Maybe this BVA decision will help you understand the evidence VA needs or this type of claim.




“At a February 2008 RO hearing, the Veteran testified that felt
that his exposure to Agent Orange and sunlight in Vietnam caused
his skin cancers. He stated that while he was never issued any
skin protection while he was in Vietnam. He recalled having a
very bad sunburn in 1967 in which the skin came off his face. “

and
“In a letter dated in February 2009, the Veteran's private
physician (L.C.K., M.D.) stated that the Veteran has been a
patient in her dermatology practice since 2003 and that he has a
history of numerous basal cell carcinoma and atypical nevi. She
noted that his examination revealed fairly severe generalized sun
damage. She also noted that the Veteran had served in Vietnam
for a year. She opined that it more likely than not that the sun
exposure that the Veteran received in Vietnam was a contributing
factor to the problems that he was currently having. She
indicated that the Veteran had shown photos of himself both prior
to and during his service in Vietnam. “

ORDER (in Part)

Service connection for skin cancer is granted.

Also we had a navy vet's claim here that his daughter worked on with help from hadit many years ago.

VA service connected all of his disabilities to include skin cancer as a result of his many ship board duties, forcing him to receive direct sunlight almost daily for hours while on duty with no sun screen protection.

These claims need a strong independent medical opinion to succeed.

They also need to be claimed by raising any potential theory of entitlement.

Edited by Berta, 02 July 2012 - 09:12 AM.


#15 Berta

 
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Posted 02 July 2012 - 09:20 AM

Sorry-I forgot the link to that BVA decision:

http://www.va.gov/ve...es1/1106553.txt

And here is another SC award for sunlight causing skin cancer:

http://www.va.gov/ve...es3/0822914.txt




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