Citation Nr: 1339990 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-34 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for Parkinson's disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from January 1977 to October 1985, and from August 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. 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 It is contended that the Veteran developed symptoms of Parkinson's disease to a compensable degree within one year of separation from service, such that service connection is warranted on a presumptive basis. See Informal Hearing Presentation, dated in August 2013. Specifically, the Veteran contends his Parkinson's symptoms started in 1991 and it is argued that a report from E.K.H., M.D., dated in July 1993, which notes a history of "shakiness his right upper extremity and right hand approximately one year ago," is evidence indicating that service connection is warranted under 38 C.F.R. §§ 3.307, 3.309 (2013). Id. The Board notes that Dr. E.K.H.'s report goes on to state that the Veteran had "intermittent pain in his right hand and right buttock following a fall which occurred when he was on duty during the Persian Gulf war," and that he had a 5-year history of a right shoulder injury. The impression was Parkinsonism manifested by mild resting tremor in the right upper extremity. The records submitted concerning the Veteran's treatment by Dr. E.K.H. for neurological symptoms spans from 1993 to 1999. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (2013). Service connection may also be granted for organic diseases of the nervous system, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a); and that continuity of symptomatology only relates the specified chronic diseases). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the medical nexus. Id. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The appellant's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. The evidence in this case shows that in July 1993, the Veteran reported a one-year history of "shakiness his right upper extremity and right hand." The Veteran's service treatment reports include an examination report, dated in December 1992 (apparently performed in association with Air Force Reserve duty) which notes that he had a normal neurological examination, but that there was mild shaking of the right upper extremity girdle - "possible muscle fatigue." VA medical records reveal a current diagnosis of Parkinson's disease. The Veteran has not yet been afforded an examination, and an etiological opinion has not been obtained. Under the circumstances, the Board finds that the Veteran should be afforded an examination, and an etiological opinion should be obtained. McLendon. The appellant is hereby notified that it is the appellant's responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of his failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo an examination to determine the nature and etiology of his Parkinson's disease, and its relationship, if any, to his military service, or any incident thereof. The entire claims folder must be made available to and reviewed by the examiner, and the examiner should indicate that the Veteran's C-file has been reviewed. The VA examination report should include discussion of the Veteran's documented medical history and assertions. All indicated studies and tests should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50percent probability) as to the following questions: a) that Parkinson's disease had its clinical onset during the Veteran's active duty service, or b) that Parkinson's disease was manifest to a compensable degree within one year of separation from active duty service in July 1991. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather 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. Note: The requested opinions require that the examiner must have notice of the applicable ratings criteria for the purpose of determining whether the disease, if extent within one year of service, rose to a compensable level (at least 10 percent disabling). Specifically, under Diagnostic Code 8004, a 30 percent disability rating represents the minimum rating for paralysis agitans. 38 C.F.R. § 4.124a (2013). In addition, the provisions of 38 C.F.R. § 4.124a provide that evaluations of neurological conditions and their residuals may also be rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. Psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc. are to be considered. With partial loss of use of one or more extremities from neurological lesions, the rating is by comparison with mild, moderate, severe, or complete paralysis of peripheral nerves. Note: A rationale for all requested opinions shall be provided, with citation to medical treatise, studies, etc., if appropriate. If you cannot provide an opinion without resorting to mere speculation, please provide a complete explanation stating why this is so. In so doing, you must explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that you have exhausted the limits of current medical knowledge in providing answers to the questions. 2. Thereafter, readjudicate the issue on appeal. If the benefits sought on appeal remains denied, furnish the appellant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and affords them the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. 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). 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. 2013). _________________________________________________ JONATHAN B. KRAMER 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) (2013).