Citation Nr: 1305446 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 06-03 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether the Veteran's dependent spouse should be added to his compensation award earlier than July 1, 2002, for accrued benefits purposes based on substitution of the appellant. 2. Entitlement to service connection for Parkinson's disease, for accrued benefits purposes based on substitution of the appellant. REPRESENTATION Appellant represented by: Michael N. Berke, Attorney ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from February 1942 to July 1945. The Veteran died in November 2010, and the substitute appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions of Department of Veterans Affairs (VA) Regional Offices (ROs). A May 2004 rating action of the RO in San Diego, California, in pertinent part, denied the Veteran's claim of entitlement to service connection for Parkinson's disease. An October 2006 rating action of the RO in Los Angeles, California, amended the Veteran's disability compensation award to reflect the addition of his dependent spouse, effective June 1, 2005. By a December 2011 rating action of the RO in St. Paul, Minnesota, the effective date reflecting the addition the Veteran's dependent spouse was changed to July 1, 2002. However, such did not resolve the appeal, as the Veteran had asserted entitlement to a disability compensation award that reflected the addition of his dependent spouse since the original award of service connection in 1946. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Upon the death of a Veteran, periodic monetary benefits to which he or she was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of death, due and unpaid for a period of not more than two years prior to death, may be paid to certain persons such as the Veteran's surviving spouse, children, or dependent parents. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2012). An amendment to 38 U.S.C.A. § 5121 removed the two-year restriction upon payment of accrued benefits, providing that a claimant may recover the full amount due prior to the date of the veteran's death. This amendment applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant. The newly revised statute provides that, "If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion." 38 U.S.C.A. § 5121A. The Veteran's surviving spouse, the appellant, was properly substituted as the claimant in this appeal by the RO in an April 2011 memorandum. Therefore, the Board may proceed to adjudicate the claims for accrued benefits purposes based on substitution of the appellant. Id. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of whether the Veteran's dependent spouse should be added to his compensation award earlier than July 1, 2002, for accrued benefits purposes based on substitution of the appellant, addressed in the REMAND portion of the decision below, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is equipoise in the evidence as to whether the Veteran's Parkinson's disease is a result of his in-service head injury. CONCLUSION OF LAW Parkinson's disease was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5121A (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311, 3.1000 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In view of the favorable disposition below, the Board finds that all notification and development action necessary to render a fair decision on the claim on appeal has been accomplished. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating: (1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, including organic diseases of the nervous system (such as Parkinson's disease), will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The appellant asserts entitlement to service connection for Parkinson's disease on the basis that such is a residual of the Veteran's in-service head injury. In his February 2005 Notice of Disagreement (NOD), the Veteran asserted that severe head injury is a risk factor for the development of Parkinson's disease. The first requirement for direct service connection, evidence of a current disability, has been met. There is no dispute that the Veteran had Parkinson's disease and/or parkinsonism. VA treatment records include a report of March 2003 magnetic resonance imaging (MRI) revealing findings consistent with vascular dementia and parkinsonism. Notably, in a January 2004 VA treatment record, the examiner noted that the MRI findings of a combination of atrophy with a temporoprietal predilection were still consistent with vascular dementia and parkinsonism with other possibilities including Alzheimer's disease in addition to Parkinson's disease or Parkinson's disease with dementia. The examiner noted that it was unclear which started first, Parkinson's symptoms, or the memory problems which were further clouded by depression, strokes and low blood pressure. In a February 2004 VA report, it was noted that the Veteran had signs that were atypical of Parkinson's disease and it was noted that based on his presentation, he could have one of atypical parkinsonian diseases. The examiner noted further that it was also possible that the Veteran had idiopathic Parkinson's disease, although the symmetry of symptoms/signs was not consistent with that disease entity. His physician, in a May 2004 letter, provided a diagnosis of Parkinson's disease. Subsequent records show a diagnosis of Parkinson's disease as well as parkinsonism; and in a June 2006 VA record it was reported that the Veteran had parkinsonism and dysautonomia without clear dopa response although he was continued on levodopa. The second requirement for direct service connection, evidence of disease or injury in service, is also met. There is no dispute that the Veteran incurred a head injury during service. His service treatment records reveal that in June 1943, the Veteran was hospitalized for a head injury. The records reveal that he slipped in between two train cars while passing from one car to the next and caught his head between the heavy door and the door jam. He was unconscious when admitted to the hospital and taken to surgery. Studies revealed no fracture, and the Veteran was treated for a laceration involving the muscle at the left temple which was sutured. The Veteran remained in an unconscious and semi-conscious state for about ten days. At the end of two weeks, the Veteran was up and around but still disoriented and confused, and later appeared with facial weakness. It was also noted that he remembered nothing for at least ten days or two weeks from the time he was injured. He subsequently appeared improved and it was felt that he would recover ultimately but it would take several months before the extent of any permanent brain damage could be fully determined. He was later seen in service for psychiatric symptomatology. Service connection was granted for psychoneurosis, psychasthenia (later recharacterized as generalized anxiety disorder with major depressive disorder) in an August 1945 rating decision. The Board now turns to a discussion of the third requirement of direct service connection, a causal relationship between the Veteran's Parkinson's disease and his service, specifically, the June 1943 in-service head injury. In April 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). In June 2012, a staff physician in the Division of Neurology opined that it was less likely than not that the Veteran's Parkinson's disease was related to the head injury he suffered during service, or was otherwise related to service. The physician reported that the Veteran suffered severe head trauma during service, as indicated by the fact that he had altered consciousness for 10 days following the injury. However, the physician reported that the evidence in medical literature regarding the causative role in head trauma in Parkinson's disease is controversial. The physician reported that while older literature suggested a link between severe head trauma and increased risk of developing Parkinson's disease; there were studies from several populations across the world showing no evidence of increased risk of Parkinson's disease following head trauma. The physician asserted that repeated head trauma and loss of consciousness appeared to be a higher risk factor rather than an isolated event. The physician thus concluded that head trauma is not considered to be a causative factor of Parkinson's disease, rather such "may be" a risk factor, and that the physician could not conclude that the Veteran's Parkinson's disease was clearly related to the head trauma he suffered during service. Evidence has also been submitted in support of the appellant's claim for service connection. In this regard, a May 2004 statement from a VA Medical Center Movement Disorders physician is of record. She states that although the cause of Parkinson's disease is unknown, there have been several large studies which have shown that head injury is a risk factor for the development of the disease, noting that the Veteran did suffer from head injury during service. It was her opinion that the Veteran should be considered for a higher service-connected disability than he was currently receiving. Although the above VA physician did not specifically list the studies to which she referred, additional information detailing relevant studies was added to the record. Further evidence includes a May 2003 article, "Head Injuries May Hike Risk of Parkinson's Disease", which discusses a Mayo Clinic study that concluded that those who had experienced head trauma involving a loss of consciousness, skull fracture, prolonged memory loss or more severe complications were 11 times more likely to develop Parkinson's disease than those who had never sustained head trauma. More recently submitted articles include, "Head Injury and Parkinson's Disease Risk in Twins", and "Head Injury, Alpha-Synuclein Rep1, and Parkinson's Disease", both by Samuel Goldman, M.D., et. al. and detailing studies on Parkinson's disease and head injuries. In the former article it was noted that the results of the studies described therein suggested that mild-to moderate closed head injury may increase Parkinson's disease risk decades later; and in the latter article, it was noted that the results of the study described therein indicated that while head injury alone was not associated with Parkinson's disease risk, the data suggested that head injury may initiate and/or accelerate neurodegeneration when levels of synuclein are high as in those with Rep1 expansion. Accompanying these articles was a cover letter from the appellant's attorney in which he indicated that he had spoken with Dr. Goldman who had supplied the articles and relayed that while Dr. Goldman recognized that there are studies, especially emanating from Sweden, that did not find a correlation which is discussed in the "Head Trauma" study mentioned above, Dr. Goldman's recent study concluded the relationship does exist and thus, the cause of the Veteran's death can be concluded to be a service-connected disability. The appellant's attorney further raised concerns regarding the June 2012 VA expert medical opinion obtained by the Board. He stated that contrary to the 2003 Mayo Clinic findings which were, in pertinent part, cited by the VA medical expert; that expert concluded that head trauma may be a "risk factor" and not a causative factor, which did not comport with the Mayo Clinic study which stated that the sample of head trauma victims was small and that was the inhibiting factor in the analysis. He also noted that the VA medical expert used the incorrect standard that the Veteran's Parkinson's disease was not "clearly related" to the head trauma in service. As an aside, the Board also notes that VA is currently proposing to amend its adjudication regulation concerning secondary service connection to include five diagnosable illnesses secondary to a traumatic brain injury. The proposed change is based upon a report of the National Academy of Sciences, Institute of Medicine entitled "Gulf War and Health: Volume 7. Long-term Consequences of Traumatic Brain Injury", released December 2008 (which itself is based upon review of two primary studies and one secondary study on traumatic brain injury and parkinsonism) finding an association between parkinsonism following moderate or severe traumatic brain injury, as well as based on other information available to the VA Secretary. See 77 Fed. Reg. 73, 366-69 (Dec. 10, 2012) (Proposed Rule. Secondary Service Connection for Diagnosable Illness Associated With Traumatic Brain Injury). As noted, however, this is currently only a proposed rule and addresses parkinsonism as opposed to Parkinson's disease. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The analysis may be stated briefly, and in light of the favorable decision, the Board need not conduct an analysis of the probative value of the lay statements of records. While the Veteran did not develop Parkinson's disease during service or to a compensable degree within one year of separation from service, or demonstrate continuous symptoms of Parkinson's disease from separation from service; the evidence is in relative equipoise as to whether his Parkinson's disease is related to his in-service head injury based on all of the evidence outlined above including the essentially negative VHA opinion, positive VA treating physician's opinion, and the reports of various studies of record. In this circumstance, all reasonable doubt is resolved in the appellant's favor and the claim of entitlement to service connection for Parkinson's disease, for accrued benefits purposes based on substitution of appellant, is granted. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b) (West 2002) and 38 C.F.R. § 3.102 (2012). ORDER Service connection for Parkinson's disease, for accrued benefits purposes based on substitution of appellant, is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As discussed above, the Veteran's surviving spouse, the appellant, was properly substituted as the claimant in this appeal by the RO in an April 2011 memorandum. The issue of whether the Veteran's dependent spouse should be added to his compensation award at an earlier date was on appeal at the time of the Veteran's death. He filed a timely NOD, in November 2006, to the RO's October 2006 determination that amended the Veteran's disability compensation award to reflect the addition of his dependent spouse, effective June 1, 2005. The RO issued a February 2008 Statement of the Case (SOC), and the Veteran filed a timely Substantive Appeal later in February 2008. At the time of his February 2008 Substantive Appeal, the Veteran asserted his right to be heard by the Board. In statements dated in February 2008 and March 2008, the Veteran asserted that he wished to be heard by the Board via video-conferencing. The Board notes here that there is a hand-written note on the Veteran's February 2008 statement indicating that the claim of whether the deceased Veteran's dependent spouse should be added to his compensation award earlier than June 1, 2005, had been granted. The date and author of the note are unknown. As noted above, by a December 2011 rating action, the effective date reflecting the addition of the Veteran's dependent spouse was changed to July 1, 2002. Also as noted above, however, such did not resolve the appeal, as the Veteran has asserted entitlement to a disability compensation award that reflected the addition of his dependent spouse since the original award of service connection in 1946. See AB, 6 Vet. App. 35, at 38. Thus, it remains that the issue of whether the Veteran's dependent spouse should be added to his compensation award at an earlier date was on appeal at the time of the Veteran's death and he requested a video-conference before the Board. The appellant, as the substitute in the appeal, is entitled to such a hearing. On remand, she must be afforded the opportunity to be heard by the Board on this issue. 38 C.F.R. §§ 20.702, 20.703, 20.704 (2012). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The appellant should be scheduled for a video-conference hearing before a Veterans Law Judge. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs