Citation Nr: 1339268 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 11-12 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for Parkinson's disease. 2. Entitlement to service connection for low blood disorder, to include as secondary to Parkinson's disease. 3. Entitlement to service connection for a kidney disorder (also claimed as a urinary disorder), to include as secondary to Parkinson's disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and family friend ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant (Veteran) served on active duty from March 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for the issues on appeal. In April 2012, the appellant, his spouse, and a family friend, provided hearing testimony at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. FINDINGS OF FACT 1. Parkinson's disease was not documented at service discharge or for many years thereafter; and, the preponderance of the competent and credible evidence of record is against a finding of a link between the appellant's Parkinson's disease and his service. 2. The competent and credible evidence of record fails to establish that a kidney disorder (also claimed as a urinary disorder) had its onset in service, was otherwise related to service, or was caused or aggravated by a service-connected disability. 3. The competent and credible evidence of record fails to establish that a low blood disorder had its onset in service, was otherwise related to service, or was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Parkinson's disease was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, (2013). 2. Kidney disorder (also claimed as a urinary disorder) was not incurred in or aggravated by service, nor is it due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). 3. Low blood pressure was not incurred in or aggravated by service, nor is it due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Assist and Notify Before addressing the merits of the claim, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). The notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The duty to notify was satisfied by way of letters sent to the appellant in August 2009 and July 2011. The letters advised the appellant of the information required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also informed of how VA determined disability rating and effective dates. Under these circumstances, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. The provided notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist an appellant in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records, private treatment records, and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the appellant's service treatment records, and private treatment records, with the claims file. No outstanding evidence has been identified. The appellant was also afforded a VA examination in connection with the claim. He underwent a VA examination in July 2011. The provided examination report was thorough and adequate upon which to base a decision. The examiner interviewed and examined the appellant, including eliciting a history from the appellant, and provided the information necessary to decide the claims. Further, the appellant was provided an opportunity to set forth his contentions at a Travel Board hearing in April 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the RO Decision Review Officer or Veteran's Law Judge (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 undersigned VLJ identified the issues on appeal. The VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Therefore, not only were the issues "explained in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claims," were also fully explained. See Bryant, 23 Vet. App. at 497. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and the Board can adjudicate the claims based on the current record. The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Claims Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002).. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Lay evidence presented by an appellant concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). Parkinson's disease The appellant asserts that he warrants service connection for Parkinson's disease based on service incurrence. He maintains that he was a fire fighter in service and that the use of tetrachloride in service, caused his Parkinson's disease. The appellant's DD 214 shows that his military occupational specialty (MOS) was a fire protection specialist. Service treatment records showed no evidence of findings, treatment, or diagnoses of Parkinson's disease in service. After service, records show the appellant first showed symptoms of Parkinson's disease in 1996, and he was diagnosed with the disease in 2001. There is substantial evidence of record which shows that he presently has Parkinson's disease. Internet articles submitted by the appellant shows that tetrachloride is a toxic and deadly chemical. It was often used as a dry cleaning solvent, pesticide, refrigerant, and in the early 20th century, as a fire extinguisher. Some of the other internet articles showed that chemical toxins, not specifically tetrachloride, were linked as possible exposure and causes of Parkinson's disease in firemen. None of the articles submitted by the appellant specifically related tetrachloride to service or to his specific service. He also submitted copies of a bill that died in the House of Representatives named the Veterans Tetrachloride Benefits Act. This bill was a proposal to provide a list of presumptive diseases that become manifest in a Veteran who was exposed to tetrachloride to be service-connected. The appellant underwent a VA examination in July 2011. The examiner stated that he performed a literature search on Parkinson's disease. The examiner could find no peer review journal articles or references showing an association between carbon tetrachloride and Parkinson's disease. While there were many proposed possible associations including environmental risk factors, the evidence was inconclusive and there was no current established risk factors known to cause Parkinson's disease. Additionally, the examiner stated that exposure to carbon tetrachloride at toxic levels were typically seen in individuals who manufactured the substance. He opined that it was doubtful that the appellant had a significant enough exposure during his two years of active duty. It was his opinion that it was less likely as not that the appellant's Parkinson's disease was caused by possible exposures to include carbon tetrachloride during his active service. Further, Parkinson's disease was noted to be an autonomic dysfunction which causes urinary symptoms and orthostatic hypotension (low blood pressure). These conditions, according to the examiner, are not caused by carbon tetrachloride. The appellant testified at a Travel Board hearing in April 2012. He testified that he was exposed to tetrachloride in service while fighting fires and while training as a fire fighter. He maintained that the chemical was banned in 1970, but they still used it while he was in service in the early 1970's. He stated that he had more exposure to the chemical than the July 2011 VA medical opinion was aware. He also testified that he did not wear protective clothing during training and use of the chemical, only protective pants. Based upon the evidence of record, the Board finds that the appellant is diagnosed with Parkinson's disease and has met the first prong of Sheeden, showing the presence of a disability. However, the evidence of record does not show in-service incurrence or aggravation of Parkinson's disease or a causal relationship between Parkinson's disease and chemical exposure to tetrachloride during service. Therefore, Sheeden prongs 2 and 3, necessary to establish service connection, has not been met. Other than the appellant's own statements, the competent and credible evidence is against the finding that Parkinson's disease is in any way related to his active service. As discussed, the medical evidence associated with the claims folder does not show evidence of Parkinson's disease at service discharge or for many years thereafter. There is no evidence of Parkinson's disease until 1996 with a diagnosis in 2001, over 20 years after service discharge. The fact remains that, aside from the appellant's own personal statement indicating that he was exposed to tetrachloride in service and this caused his Parkinson's disease, there is no evidence documenting that he had Parkinson's disease until 2001. At that time, medical evidence showed he had the disease, but not that it was caused by a chemical exposure to toxins in service. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, 451 F.3d 1331. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board finds that an opinion as to whether Parkinson's disease was manifest or aggravated as a result of service is a complex medical matter which requires specialized medical training. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence). The weight of the competent evidence in this case does not attribute the appellant's present Parkinson's disease to service, despite his contentions to the contrary. No medical professional has established a relationship between this disorder and active duty. There is no such medical evidence of record, and the appellant has not indicated that any physician has associated his Parkinson's disease to chemical exposure during his active service. Moreover, the July 2011 VA examination findings indicate that the evidence is inconclusive, and there is no current established risk factors, chemical or otherwise, linked to Parkinson's disease. Thus, since the Veteran was not diagnosed with Parkinson's disease until 2001, and no symptoms of the disorder was evident in the appellant prior to 1996, and no competent and credible evidence has shown that Parkinson's disease can be linked to chemical toxins wherein the appellant was exposed in service as a fire fighter, service connection is not warranted for Parkinson's disease. The preponderance of the evidence is against the claim. The claims for kidney disorder (claimed as a urinary disorder) and low blood pressure, must also fail. Service treatment records showed no findings, treatment, or diagnoses for a kidney disorder or low blood pressure in service or for many years thereafter, The appellant does not argue the contrary. Rather, he maintains that he has a kidney disorder and low blood pressure due to his Parkinson's disease. Based on the evidence of record, the Board finds the competent and credible evidence of record fails to establish that a kidney disorder or low blood pressure had its onset in service, or was otherwise related to service, or was caused or aggravated by a service-connected disability. In order to establish service connection for a claimed disability on a secondary basis, there must be: (1) medical evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service- connected disease or injury and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). With respect to Wallin element (1), the Veteran does have a urinary disorder and has been found to have hypotension. However, service connection is not established for Parkinson's disease. Therefore, Wallin elements 2 and 3 have not been met and entitlement to service-connected benefits for a kidney disorder (also claimed as a urinary disorder) and low blood pressure must be denied. ORDER Service connection for Parkinson's disease is denied. Service connection for a kidney disorder (also claimed as a urinary disorder) is denied. Service connection for low blood pressure is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs