Citation Nr: 1334622 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-25 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a neurological disorder to include Parkinson's disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his Spouse ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from July 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota that denied service connection for Parkinson's disease. In September 2008 the Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO. A transcript of the hearing is of record. The Board issued a decision in June 2010 denying the claim. Thereafter, the Board issued a Vacatur of that decision in January 2011 to permit the Veteran's representative to review the file prior to final adjudication of the appeal. The Board issued another decision in October 2011. The Veteran timely appealed to the Court of Appeals for Veterans Claims (Veterans Court). In April 2012, pursuant to a Joint Motion for Partial Remand ("Joint Motion"), the Veterans Court vacated and remanded the Board's October 2011 decision. In April 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in June 2013. The Board provided the Veteran a copy of that opinion and provided an opportunity to respond in June 2013. The record also reflects that additional evidence has been submitted since the most recent supplemental Statement of the Case (SSOC), and the Veteran's representative has submitted a waiver of having this evidence initially considered by the agency of original jurisdiction (AOJ) in accord with 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. Parkinson's disease or other neurological disorder was not shown in service or during the first year after discharge from service. 2. Parkinson's disease or other neurological disorder is not etiologically related to service. CONCLUSION OF LAW Parkinson's disease or other neurological disorder was not incurred in or aggravated by active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, a February 2006 letter provided the Veteran with notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. A March 2006 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran volunteered his service experiences supporting his theory of entitlement, together with his treatment history and symptoms since service. He expressed a clear understanding of the criteria to establish service connection and what evidence would support that claim. Accordingly, the Veteran is not shown to be prejudiced by the conduct of the hearing. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, VA treatment records, private treatment records, VA examination reports, and hearing testimony. In addition, a VHA medical opinion was obtained in June 2013. See 38 C.F.R. § 3.159(c)(4). The Board finds the June 2013 medical opinion adequate as it was based on a thorough review of the claims file and provides supporting rationale. Thus, the duties to notify and assist have been met. With the VCAA requirements having been met, the Board may proceed to a decision. Legal Principles Service connection may be granted for 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. 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). 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. 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). Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests paralysis agitans (Parkinsonism) to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Effective from August 31, 2010, 38 C.F.R. § 3.309(e) was amended to add Parkinson's disease to those diseases presumably caused by exposure to an herbicide agent during active service. The Veteran in this case served on active duty during the Vietnam era, but the Veteran does not assert, and the record does not show, that he served in the Republic of Vietnam or was otherwise exposed to herbicides during active service. Accordingly, the presumption under 38 C.F.R. § 3.309(e) does not apply. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("(A) medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran essentially asserts he developed Parkinson's disease (PD) or other neurological disorder due to exposure to toxins including paints, primers, thinners and solvents during active service. VA neurological outpatient treatment records and VA medical examinations establish the clinical diagnosis of PD. Accordingly, the first element of service connection - medical evidence of a current disability - is satisfied. The Veteran's DD Form 214 establishes that he carried the occupational specialty title of aircraft protective coater and that he attended a protective coating specialty course. Service treatment records (STRs) include sick slips showing the Veteran worked in a 'paint shop.' Lay evidence in the form of a September 2006 'buddy statement' from 'DT' states the Veteran had the 'nasty job' in service of removing old paint off aircraft and other equipment and then repainting the equipment, in the course of which he was frequently covered in paints and solvents under circumstances that would not be acceptable under today's safety standards. Similarly, in a July 2007 lay statement 'PB' asserted that he observed practices in a military 'paint shop' during Operation Desert Storm (1990-91) that were reminiscent of those described by the Veteran and deficient in both protection of personnel from exposure and in proper disposal of cans and contaminants. Finally, the Veteran testified before the Board that while performing duties as paint stripper he was frequently covered with paint he had to scrub off with paint thinner. The Board accordingly accepts that the Veteran was exposed during service to paints, solvents, thinners, and similar chemical compounds. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F. 3d 1351, 1353 (Fed. Cir. 2000). This is the essence of the third part of the Hickson analysis. In this case, STRs document no neurological abnormalities during service. The report of medical examination at the time of the Veteran's separation from service in December 1968 shows clinical neurological evaluation as 'normal' and notes the Veteran denied any significant medical or surgical history. According to the Veteran's application for compensation or pension filed in 1998, PD was diagnosed in 1995, nearly 30 years after discharge from service, although elsewhere the Veteran's wife asserted diagnosis in 1992. The Veteran's wife testified before the Board that she noticed the Veteran having agitation and inability to concentrate since their marriage in 1977, and noticed the onset of tremors in the 1980s. As noted below, medical opinion of record states the Veteran's symptoms during and immediately after service were not early manifestations of PD. There is accordingly no competent indication of onset of PD to a compensable degree within one year of discharge from service, so presumptive service connection under 38 C.F.R. § 3.309(a) is not applicable. During the course of his appeal the Veteran has submitted various treatises and articles regarding PD and its possible relationship to exposure to toxins. The Veteran has also submitted documents pertaining to pollution and contamination at various bases, including King Salmon Air Force Base (AFB), Eareckson AFB, Eielson AFB, Elmendorf AFB and Travis AFB. The file also contains a material data safety sheet relating to the primer and sealer Flash Bond describing risk of permanent brain and nervous system damage. The Board finds these various medical treatises and articles to be of limited probative value in the present case. This is because they are not accompanied by any medical opinion relating the information contained in the documents to the Veteran's specific case. The Veteran had a VA examination in March 2006 in which he asserted having been exposed during service to toxins including epoxy paints and chromate primers. The examiner performed a clinical examination and noted observations in detail; the examiner also noted treatise evidence submitted by the Veteran associating toxin exposure to PD. The examiner stated she would not be surprised if there was some association, but at that point in time it would be speculative. The file also contains a VA neurology student note in April 2010 describing early onset PD 'possibly secondary to chemical exposure.' Similarly, a VA neurology resident note the same month describes the Veteran's onset of symptoms, as narrated by his wife, as well as the Veteran's current symptoms; the resident stated the Veteran did not have a family history of PD but had reported a history of working with chemicals in service that 'may have contributed to development at such an early age.' In regard to the medical opinions cited above, opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). Here, 'would not be surprised if there was some association,' 'possibly secondary to chemical exposure' and 'may have contributed to development at such an early age' are all speculative. While from competent sources and entitled to some weight, they are not adequate by themselves to support entitlement to service connection. A VA internal medicine outpatient note dated in April 2010 shows the Veteran's wife asked for an environmental medicine opinion as to whether any of the solvents or paints the Veteran had used during service might have been instrumental in developing Parkinson's. The physician responded he had no information that would support such a connection, but if any reports of such association could be found on the internet or elsewhere the Veteran's claim could be reopened. The Board considers 'no information that would support such a connection' to be a competent and probative opinion against nexus. The Veteran had a VA examination in February 2011, performed by a physician who reviewed the claims file and the medical record. The examiner noted the documented history of the Veteran's disease in detail, as well as the Veteran's account of exposure to toxic substances during service and other lay evidence of record. The examiner also noted a recent assertion by the Veteran's representative that symptoms the Veteran exhibited during service were compatible with early undiagnosed PD. The examiner performed a clinical examination of the Veteran and noted observations in detail. Based on review of the file and examination of the Veteran, the examiner stated an opinion that it is not at least as likely as not the Veteran had exhibited PD in service or within a year after discharge from service. The examiner noted that lay statements of record showed the Veteran to have been very much changed when he returned home from service, but those descriptions were not consistent with Parkinson's disease, in which patients become slowed and have diminished amplitude of movements, facial expressions, handwriting and speech due to the decrease of dopamine. In contrast, the lay statements appear to describe the Veteran as having been 'hyper' rather than diminished. Such behavior could be associated with a variety of medical problems characterized by hyper-arousal (anxiety, mania, agitated depression, hyperthyroidism, or substance abuse among others) but are not suggestive of PD. In regard to the Veteran's reported insomnia, the presence of insomnia is quite nonspecific and not sufficient to support a diagnosis of PD. The decremented legibility of the Veteran's handwriting, as demonstrated by handwriting samples of record, is not consistent with the micrographia seen in PD because the writing became fairly large in amplitude. The examiner added there are a few cases in which PD can be attributed to genetic factors or specific exposures, and there are many theories on the possible interactions of genes or exposures, but there is no unifying understanding of the cause of PD and for most cases of the diseases the cause is unknown. A VHA opinion was requested by the Board in April 2013. The VHA opinion was received in June 2013. The neurologist noted that the Veteran's complaints and letters from his family members and friends clearly report a change in the Veteran after return from military service in the Air Force from July 1965 to December 1968. The specialist noted that the changes are not suggestive of PD. The examiner noted that it is extremely unlikely that if the walking changes reported by the Veteran's wife were signs of PD, that 20 years later when the official diagnosis was made that his examination would not have been more evident for walking changes. The specialist noted that the Veteran was found to have good balance in 2000. The specialist also found that the overall descriptors of the Veteran's behavior near the time of discharge and the years after are not suggestive of PD, where patients experience changes such as slowed movements and walking, decreased facial expressiveness, and tremors. The specialist noted that, in the years after service, the Veteran was found to be energetic, drinking excessively, and was arrested multiple times. The specialist found that these reports are suggestive of a psychiatric diagnosis and it was noted in later medical records that the Veteran may suffer from obsessive compulsive traits. The specialist noted that the Veteran reported complaints of constipation, insomnia and acting out dreams, and a change in handwriting. The specialist found that these symptoms may be seen in patients with PD, however it is very difficult to attribute these complaints to PD in this Veteran. The specialist noted that constipation is non-specific and can be seen due to a variety of factors including diet. The examiner stated that parasomnias and insomnia are also seen due to a variety of factors, and are not a specific sign of PD. The specialist noted the decrease in legibility of the Veteran's handwriting, and found that the changes were not consistent with the micrographia seen in Parkinson's. The specialist also found that the changes were not consistently seen. The specialist opined that there is sufficient evidence to say that the Veteran did not show any clear evidence of PD within one year (and likely greater than 5 years) of his discharge from the military or during the military service. The specialist noted that the Veteran's military occupation as a painter, protective coating specialist, very likely led to exposures of various chemicals including methylene chloride and trichloroethylene. The specialist noted the several compelling documents suggesting that some of the military locations that the Veteran was appointed to may have contaminations of various chemicals including trichloroethylene. The specialist stated that there is evidence that people exposed to certain heavy metals, pesticides and solvents may be at an increased risk of PD, but it is complicated, and in this case essentially impossible to state definitive causation. The specialist noted that it is nearly impossible to quantify the extent of exposure the Veteran had while he was in the military. It is noted that his levels of lead were reported to be normal and were tested regularly as per the records. The possibility that the Veteran was exposed to substances that increase the chances of PD during his non-military time, just as all individuals are exposed, cannot be discounted. The specialist noted that an article provided by the Veteran reported that trichloroethylene is "detected in air, soil, food, and human breast milk, and is the most frequently reported organic contaminent in groundwater, found in up to 30% of US drinking water supplies." Therefore, the specialist concluded that the Veteran has PD with first clear documented signs of disease in the 1990s (1995) greater than 25 years after his 1968 discharge from the Air Force; the changes in the Veteran's mental state, handwriting, speaking, etc. after discharge from the military as described by the wife, family and friends were not consistent with PD; while it is very likely that the Veteran was exposed to chemicals associated with PD due to the nature of his military occupation, it is nearly impossible to attribute those exposures with any certainty to a diagnosis of PD greater than 25 years later. The specialist opined that it is less likely than not that the Veteran developed PD during service or as a consequence of service including due to exposure to toxins. The Board finds the conclusions in the VHA report to be the most probative evidence on the question at issue since it is based on thorough review of the evidence and supported by extensive rationale. The Veteran's representative submitted a statement in February 2011 asserting the Veteran's wife had stated that in the spring of 2010 a VA 'neurological specialist' in San Francisco told her that the Veteran had PD for more than 40 years, which would put the onset during active service although not diagnosed until much later. However, the VA treatment records from San Francisco are on file, and contain no documentation of such a statement. Thus, the Veteran's wife's statement as to what a physician told her is according little weight since it is necessarily filtered by her lay sensibilities. Further, the VA examiner in February 2011 stated it is unlikely that a physician would have been able to determine that a patient had manifested PD 40 years earlier based on a description of symptoms. As explained above, the VHA specialist in June 2013 competently and persuasively explained the Veteran's symptoms as reported by the lay statements were not consistent with early PD. Although it hardly needs stating, the Board finds the VHA specialist's findings more persuasive and probative as to whether the Veteran's symptoms were consistent with PD, since the VHA specialist is a neurologist, while the statements from the Veteran, friends, and family were provided by laypersons. The Board therefore finds that the June 2013 VHA specialist's findings are entitled to more weight. The Veteran asserted in June 2006 in conjunction with his request for nonservice-connected pension that he had been unable to hold employment since being discharged from service. To the degree that this statement is intended to show recurrence of severe symptoms since service, it is inconsistent with VA neurology clinic records showing that the Veteran was able to run a business full-time in February 2004, and that he did not quit work altogether until September 2005. Thus, the Board finds the Veteran's assertion that he had been unable to hold employment since being discharged from service not to be credible. In sum, based on careful review of the medical and lay evidence of record, the Board has found the Veteran's claimed neurological disorder, including PD, is not shown to have been manifest during service or during the first year after discharge from service, and is not shown to be etiologically related to service. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the evidence preponderates against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for a neurological disorder to include Parkinson's disease is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs