Citation Nr: 1326175 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-37 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for Parkinson's disease. 2. Entitlement to special monthly compensation (SMC) based on aid and attendance REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to October 1970 and from July 1973 to January 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This appeal was previously before the Board in September 2012. The Board remanded the claims so the Veteran could be scheduled for a VA examination. The case has been returned to the Board for further appellate consideration. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking service connection for Parkinson's disease as well as SMC based on the need for aid and attendance of another person. The Board notes parenthetically that he is receiving SMC at a lower level for a portion of the appeal period in question. He has put forth several theories of entitlement to these benefits. The Veteran has argued that he should be entitled to presumptive service connection for Parkinson's disease due to his service in Vietnam. Although this is a disease warranting presumptive service connection under the newly-revised 38 C.F.R. § 3.309(e) for Veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, based on presumed exposure to herbicides, the VA has been unable to verify that the Veteran in fact served in Vietnam. Rather, the undisputed information obtained by VA from the service department indicates that the Veteran's ship, the USS Ranger, is not currently on the list of Navy ships associated with service in Vietnam. There is no other information of record that places him in Vietnam during service. This information was communicated to the Veteran and his representative. As such, despite the representative's assertion that the Board should consider whether additional development is warranted, the Board can identify no additional avenues for develop of the sub-issue of whether the Veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Alternatively, the Veteran has argued that he developed Parkinson's disease due to exposure to toxic substances while serving aboard the USS Ranger. Specifically, he points to various fuels, gases, and fumes that were present aboard ship. He has also argued that the insecticides he used to rid buildings of termites during his service at Pearl Harbor may have caused his Parkinson's disease. In this regard, his representative referenced published scientific research in support of this assertion in a written brief dated in August 2012. Additionally, an internet article noted that a chemical (hexachlorocyclohexane) was found in higher levels in the blood of Parkinson's disease sufferers. The chemical was noted to be in the pesticide DDT. The Board notes that while there is evidence the Veteran was diagnosed with Parkinson's disease, there is also evidence that in June 2010 a VA physician determined he did not suffer from Parkinson's disease but instead had benign essential tremors. He noted that two maternal aunts also had tremors, and the Veteran applied for service connection for benign essential tremors (this claim was denied and not appealed). In an August 2010 statement, the Veteran noted that his benign essential tremors were inherited. Additionally, in a March 2009 statement the Veteran noted that one aunt and one grandfather suffered from Parkinson's disease. Notably, the Veteran's private treatment records for the physician treating his Parkinson's disease are not of record. In December 2007, the Veteran provided a VA Form 21-4142, release of medical records; however, he attempted to use one release form for 8 physicians. A separate form is needed for each physician. It does not appear that the RO informed the Veteran that his release was not adequate and that they could not receive the private treatment records he authorized. As such, on remand, the Veteran should be requested to provide separate releases for treatment records pertaining to his Parkinson's disease. The September 2012 VA examiner did not address the indication in the record that the Veteran suffered from benign essential tremors instead of Parkinson's disease. The examiner provided an opinion that the Veteran's Parkinson's disease was not due to service. The rationale for this opinion is that Parkinson's disease can be caused by genes or by environmental triggers such as exposure to certain toxins, but that both causes are rare. The rationale, therefore, is not fully formed and does not support the opinion expressed. As the rationale is not adequate and the examiner did not address important information in the treatment records, the examination is inadequate and a new examination should be provided. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim.) The Veteran's claim for aid and attendance is intertwined with his claim for service connection for Parkinson's disease. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that have treated his Parkinson's disease and benign essential tremors. Of particular interest are any treatment records from Dr. Kubley. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. Ongoing VA treatment records should also be obtained. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After obtaining any additional evidence, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine whether he suffers from Parkinson's disease, and if so if it is at least as likely as not that his Parkinson's disease is due to service and specifically toxic exposure as alleged by the Veteran. The claims files and any electronic records must be made available to and reviewed by the examiner. All indicated studies should be performed. The examiner should review the information found at: http://www.ninds.nih.gov/disorders/parkinsons_disease/parkinsons_research.htm#environmental (the article provided by the Veteran's representative), as well as the internet article contained in the claims file. The examiner should elicit a complete family history from the Veteran. The examiner should elicit a complete history of pesticide and insecticide use (pre-, during and post-service) from the Veteran. The examiner should specifically address whether the Veteran's symptoms are due to Parkinson's disease or benign essential tremors. The supporting rationale for all opinions expressed must be provided. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinions provided. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible. 3. Then, the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).