Citation Nr: 1327952 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-12 443 ) 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 due to exposure to herbicides in service. 2. Entitlement to service connection for myocardial infarction, to include as due to exposure to herbicides in service. 3. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his daughter ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to May 1969. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio and a June 2011 rating decision by the Huntington, West Virginia RO. In May 2013, the Veteran, his spouse, and his daughter testified before the undersigned Veterans Law Judge, via videoconference. A transcript of the hearing is associated with the claims file. Also in May 2013, the Veteran submitted additional evidence consisting of safety guidelines for dealing with JP 7 Jet fuel and articles pertaining to herbicides on Okinawa. See 38 C.F.R. § 20.1304 (2012). The Board notes that the Veteran waived agency of original jurisdiction (AOJ) consideration of this evidence. Id. Therefore, the Board may properly consider such evidence in rendering its decision. Prior to receipt of the current claim, the RO denied service connection for Parkinson's disease in an August 2005 rating decision on the basis that the disability was not diagnosed in service and the evidence did not reflect a relationship between the current diagnosis and any in-service event or injury. Thereafter, in a January 2009 rating decision, the claim was again denied on the basis that new and material evidence sufficient to reopen the claim had not been submitted. However, on August 31, 2010, the regulations governing service connection claims related to herbicide exposure were revised to include Parkinson's disease among the disabilities presumed to be related to such exposure. When a provision of law or regulation creates a new basis of entitlement to benefits, the applicant's claim subsequent to the previously denied claim, asserting rights which did not exist at the time of the prior claim, is necessarily a different claim. Spencer v. Brown, 17 F.3d 368, 372 (Fed. Cir. 1994). Therefore, the Veteran's claim is correctly identified as an original claim for service connection for Parkinson's disease as indicated on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's review of the claims file indicates that a remand is necessary. First, the Board observes that the Veteran's DD Form 214 does not identify any foreign and/or sea service for the Veteran. However, at the May 2013 hearing, the Veteran testified to having been stationed at Okinawa for a reconnaissance meeting. He has also submitted several documents referencing the possible storage and use of herbicides in Okinawa during the Vietnam War. Therefore, the Board determines that the Veteran's complete personnel file (201 file) should be associated with the claims file to allow for detailed review of his duty stations and assignments during service. Additionally, in a May 2011 submission, the Veteran identified VA treatment at the VA Medical Center (VAMC) in Chillicothe from 2008 to the present, the VAMC in Dayton in 2005, and by a Dr. Duncan [sic] at a VA outpatient clinic. VA treatment records in the file are dated from February 2006 to October 2010 and show treatment at the Chillicothe VAMC and by Dr. Dunkin at an associated outpatient clinic. However, there are no VA treatment records from the facility in Dayton in the claims file or any indication that such records were requested. Additionally, as indicated, the most recent VA treatment record from the Chillicothe VAMC is dated in October 2010. Thus, all VA treatment records from the Dayton VAMC dated from 2005 to the present and from the Chillicothe VAMC dated from October 2010 to the present should be added to the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's complete personnel file (201 file) from the National Personnel Records Center (NPRC) and any other appropriate sources. All requests and responses, positive and negative, must be documented in the claims file. 2. Associate with the claims file all treatment records for the Veteran dated from 2005 to the present from the Dayton VAMC and any associated outpatient clinics and all VA treatment records from the VAMC in Chillicothe and any associated outpatient clinics dated from October 2010 to the present. All requests and responses, positive and negative, must be documented in the claims file. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought on appeal is not granted in full, the Veteran will be provided a supplemental statement of the case and an opportunity to respond in accordance with applicable statutes and regulations. The case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters 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). _________________________________________________ U. R POWELL 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).