Citation Nr: 1320767 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 13-07 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for Parkinson's disease, claimed as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Appellant's spouse ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that 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 Veteran had active service from November 1950 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the March 2013 substantive appeal, the Veteran requested a hearing before the Board; however, that request was withdrawn in April 2013. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. In a September 2012 statement, the appellant referenced pension benefits. As a claim for pension benefits has not been adjudicated since 2009, the matter of entitlement to nonservice-connected pension benefits, to include as due to the need of the regular aid and assistance of another person, is referred to the RO for the appropriate consideration. FINDINGS OF FACT 1. The Veteran participated in a radiation risk activity during service. 2. Parkinson's disease was not manifest in service and is unrelated to service, to include exposure to ionizing radiation therein. CONCLUSION OF LAW Parkinson's disease was not incurred in active service, nor may such a disorder be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in July 2010 discussed the evidence necessary to support claims for service connection. The Veteran was invited to submit or identify evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. This letter also discussed the manner in which VA determines disability ratings and effective dates. An October 2010 letter advised the Veteran that his service treatment records had been requested from the service department, and that he should submit any such records already in his possession. In February 2011 the Veteran was asked to provide information pertaining to his radiation risk activity in service. He was also generally advised of the status of his claim. The Board finds that the content of the above notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to his claim. However, the Board finds that a VA examination is not necessary in order to render a decision. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. In the instant case, there is no competent evidence suggesting that the Veteran's Parkinson's disease is, or may be, associated with service, to include exposure to ionizing radiation. As such, an examination is not warranted. The Board notes that service treatment records for the Veteran's service are apparently not available. The U.S. Court of Appeals for Veterans Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The analysis below has been undertaken with VA's heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis As an initial matter, the Board notes that the Veteran has not alleged that his claimed disabilities are the result of participation in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown , 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are certain types of cancer that are presumptively service-connected when specific to radiation-exposed Veterans. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). Second, "radiogenic diseases" may be service connected pursuant to 38 C.F.R. § 3.311. Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge was otherwise incurred during active service, including as a result of exposure to radiation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Service treatment records are negative with respect to any complaint, diagnosis, or abnormal finding suggestive or Parkinson's disease. On examination in March 1953 and at discharge in November 1953, the Veteran was neurologically normal. In a December 1984 letter to the Veteran, the Department of the Air Force indicated that he had been confirmed as a participant in operation Tumbler-Snapper in 1952. The Air Force estimated that the Veteran's total exposure to ionizing radiation was 0.022 rem. Private medical records indicate that in April 1997, the Veteran reported occasional shaking of his hands. He specified that this occurred when he was under stress, and that it became particularly severe with high caffeine intake. Sensory was intact and deep tendon reflexes were normal. The impression was rule out anxiety versus Parkinsism versus Parkinson's disease. The provider noted that given the history, he believed that the tremors were anxiety related. A May 1997 CT scan revealed some deep white matter ischemic demyelination, probably compatible with the Veteran's age of 66. The examination was otherwise within normal limits. An EEG in June 1997 was normal. In September 1999 a private provider noted that the Veteran had been diagnosed with a mild case of Parkinson's disease. VA treatment records dated from February 2003 to November 2009 show a diagnosis of Parkinson's disease. In October 2012 the Veteran's private provider indicated that the Veteran's Parkinson's disease was end stage, and that if it progressed in normal fashion it was a terminal diagnosis. In November 2012 the Veteran's wife stated that the Veteran was under hospice care. Having carefully considered the record, the Board has determined that, regrettably, service connection for Parkinson's disease is not in order. With respect to the Veteran's contention that his Parkinson's disease might be related to his exposure to ionizing radiation, the Board initially notes that Parkinson's disease is not subject to the presumptive provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Additionally, it is not a "radiogenic disease" pursuant to 38 C.F.R. § 3.311(b)(2), nor has the Veteran cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease pursuant to 38 C.F.R. § 3.311(b)(4). Accordingly, the only avenue for entitlement to service connection is under the theory that the disability was caused by exposure to radiation under 38 C.F.R. § 3.303(d) which requires evidence that the disease diagnosed after discharge was otherwise incurred during active service, including as a result of exposure to radiation. In that regard, there is a lack of evidence demonstrating any complaint or abnormal finding suggestive of Parkinson's symptoms until many years after service. The first indication of problems with tremors dates to 1997, and the diagnosis of Parkinson's disease came in approximately 1999, many years following the Veteran's separation from service. Moreover, the record is negative for any competent evidence relating this claimed disability to service. The competent evidence does not demonstrate that this claimed disability is the result of exposure to radiation or any incident of service. Moreover, there is no competent evidence that the claimed disability was otherwise incurred during the Veteran's active service. The evidence demonstrates a remote, post-service onset of this claimed disability. In summary, the record does not show that the claimed Parkinson's disease is related to the confirmed exposure to ionizing radiation in service. The record is otherwise silent regarding such a relationship. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. The Board has considered the statements of the Veteran's wife to the effect that his current Parkinson's disease is due to radiation exposure in service. However, it finds that the question of whether the current disability was incurred in service, or is otherwise related to radiation exposure, is a complex medical issue that is beyond the realm of a layman's competence. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for Parkinson's disease is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs