Here’s a Vet from my home RO who is going to be getting a nasty letter in the mail soon. VA is going to inform him that he is no longer entitled to the presumption of Agent Orange or any other disease that will link his peripheral neuropathy to service unless, of course, it’s on the 3.309(e) list. Since peripheral neuropathy is nowhere to be seen, the rating will be revoked. They won’t dun him for the bucks, but they will make sure he his claim is revoked.
The Walker Decision poked a huge hole in this. Even though he has a lovely nexus letter ascribing it to Agent orange, it isn’t on the 38 CFR §3.309(e) list and will be jerked out as a CUE.
The VLJ is being generous and trying to follow the former interpretation of §3.303(b) as they have for aeons. Now that this has been cast on the ash heap of jurisprudence, VA will soon ignore the backlog and race from c-file to c-file fervently searching for these defective decisions. We will see the fallout in about 3 years when they wend their way through the system and arrive back here in DC.
Of note is whether he’ll be able to keep his “Cloracne” cum actinic keratosis. My guess is the baby will depart with the bath water on this. Both decisions rely heavily on the §3.303(b) language but I see this as the problem
Notably however, the December 2010 VA general medical examination noted that the Veteran suffered from sun-damaged skin over male pattern baldness. He had scars on the bridge of his nose at the site of a basal cell carcinoma excision. He had scars on his left proximal arm and his right forearm that measured two centimeters in diameter on both arms due to basal cell carcinoma excisions. He also had multiple actinic keratoses over the scalp and face. Ultimately, the VA examiner concluded that the Veteran’s skin condition was at least as likely as not due to herbicide exposure during his active military service in Vietnam. See VA General Medical Examination Report, December 17, 2010.
Again, actinic keratosis and basal skin carcinomas are not on the magic list. Simply mumbling that this is related to AO without it being on the list opens any number of diseases to enter in and be rated as due to it. This is exactly what the Secretary has been adamant about for years. He has guarded the gates quite well and now has the Walker decision in his wallet. If you haven’t had this rated for twenty years, you can kiss it goodbye. Since it is a CUE, they will probably find a way to go past 20 and revoke. VA’s greed knows no bounds.