Citation Nr: 1042498 Decision Date: 11/12/10 Archive Date: 11/24/10 DOCKET NO. 06-37 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for Parkinson's disease, to include as secondary to Agent Orange exposure. 2. Entitlement to service connection for Alzheimer's disease, to include as secondary to Agent Orange exposure and Parkinson's disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to October 1972. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). In September 2010, the Veteran's accredited representative raised the issues of entitlement to service connection for a left orchiectomy and whether there was clear and unmistakable error in the March 9, 1981 rating decision which denied entitlement to service connection for hearing loss. These issues have not been developed for appellate review and are therefore referred to the RO for appropriate disposition. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange. 2. The Veteran has a current diagnosis of Parkinson's disease. 3. The medical evidence of record shows that the Veteran has a current diagnosis of Alzheimer's disease that is related to a service-connected disability. CONCLUSIONS OF LAW 1. Parkinson's disease is presumed to have been incurred in active military service due to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 1131, 1116, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. Alzheimer's disease is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Without deciding whether the notice and development requirements of the VCAA have been satisfied in the present case, this law does not preclude the Board from adjudicating the issues involving the Veteran's claims for service connection for Parkinson's disease and Alzheimer's disease, as the Board is taking action favorable to the Veteran by granting service connection for these disorders. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). Parkinson's Disease Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, 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); 38 C.F.R. § 3.307. The following diseases are deemed associated with herbicide exposure, under VA law: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), and diabetes mellitus (Type 2). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309. During the pendency of this appeal, VA amended 38 C.F.R. § 3.309(e) to change the list of diseases which are deemed associated with herbicide exposure. The amendment removes chronic lymphocytic leukemia and replaces it with all chronic B-cell leukemias, and adds Parkinson's disease and ischemic heart disease. 38 C.F.R. § 3.309(e) (August 31, 2010). The stay for adjudicating cases impacted by this regulatory change was lifted, effective October 30, 2010. Chairman's Memorandum No. 01-10-37 (Nov. 1, 2010). The Veteran's service treatment records are negative for any diagnosis of Parkinson's disease. After separation from military service, in an October 2003 private medical report, the Veteran reported that he had been experiencing right hand tremors for approximately one year. After physical and neurological examination, the impression was "suspicious for Parkinson's disease." The medical evidence of record shows that Parkinson's disease has been consistently diagnosed since October 2003. The evidence of record reveals that the Veteran served in Vietnam. He is therefore presumed under 38 U.S.C.A. § 1116(f), to have been exposed to herbicide agents, to include Agent Orange. Accordingly, presumptive service connection for Parkinson's disease based on exposure to herbicides is warranted. Alzheimer's Disease Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by a service connected disability or (b) aggravated by a service connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin, 13 Vet. App. at 8. The Veteran's service treatment records are negative for a diagnosis of Alzheimer's disease. After separation from military service, in an October 2003 private medical report, the Veteran complained of failing memory over the previous two years. After physical and neurologic examination, the examiner stated that "I believe that his memory problems may be associated with Parkinson's disease, as 30% or so will also have a superimposed dementia." A December 2003 private medical report stated that the Veteran was seen for a dementia workup. The examiner stated that the dementia workup was negative. A February 2004 private medical report stated that the Veteran was seen regarding Parkinson's disease and Alzheimer's dementia. A second February 2004 private medical report stated the Veteran had scored 20 out of 30 on a Mini Mental State Examination. The assessment was Alzheimer's disease. The medical evidence of record shows that Alzheimer's disease has been consistently diagnosed since February 2004. An August 2004 private medical report gave an impression of "[i]diopathic Parkinson's disease with dementia." A November 2005 private medical report gave an impression of "Parkinson's-associated dementia." An August 2006 private medical report gave an impression of "[a]dvancing Parkinson's disease with dementia." A second August 2006 private medical report gave an impression of "[d]ementia associated with Parkinson's disease/Alzheimer's, stable." A November 2006 private medical report gave an impression of "Parkinson's associated dementia." A second November 2006 private medical report stated that the Veteran was seen regarding "Parkinson's disease with Alzheimer's dementia." A March 2007 private inpatient hospital report stated that the Veteran had a medical history of "Parkinson's-related dementia." A March 2007 private medical report stated that the Veteran was seen regarding "Parkinson's associated dementia." The impression was "[i]diopathic Parkinson's disease with associated dementia." A June 2007 private medical report stated that the Veteran was seen regarding "Parkinson's disease with dementia." The impression was "[i]diopathic Parkinson's disease with dementia." An August 2007 private medical report stated that the Veteran was seen regarding "Parkinson's disease with dementia." The impression was "[i]diopathic Parkinson's disease with dementia." The medical evidence of record shows that the Veteran's Alzheimer's disease is related to a service-connected disability. The medical evidence of record clearly demonstrates that the Veteran has received consistent diagnoses of Alzheimer's disease since February 2004. In addition, the medical evidence of record repeatedly states that the Veteran's Alzheimer's disease was related to or associated with his Parkinson's disease." There is no medical evidence of record which contradicts these medical opinions, and, as discussed above, service connection for Parkinson's disease has been granted herein. Therefore, applying the doctrine of reasonable doubt, the Board finds that the Veteran's Alzheimer's disease is related to a service-connected disability and therefore, service connection is warranted for Alzheimer's disease. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for Parkinson's disease is granted. Service connection for Alzheimer's disease, as secondary to service-connected Parkinson's disease, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs