Citation Nr: 1409041 Decision Date: 03/04/14 Archive Date: 03/12/14 DOCKET NO. 13-05 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a disability claimed as Parkinson's disease, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD L. Reeder, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 through February 1971, with service in the Republic of Vietnam from December 1969 through February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in addition to the paper claims file in this case, an electronic VA paperless claims file has also been associated with the Veteran's claim, and has been reviewed. A review of these electronic documents reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary to determine whether the Veteran is entitled to service connection for a disability claimed as Parkinson's disease, and alleged to be due to herbicide exposure. The Board notes that while Parkinson's disease is a disease presumptively associated with herbicide exposure in Vietnam, Parkinsonism is not. Indeed, in the Final Rule adding Parkinson's Disease to the presumptive disease list under 38 C.F.R. § 3.309(e), VA specifically addressed comments requesting that VA "clarify its definition of Parkinson's disease, to include diseases of Parkinsonism (primary, atypical, and secondary Parkinson's diseases) and secondary Parkinsonism syndromes, as well as other Parkinsonian disorders." 75 Fed. Reg. 53202, 53203 (Aug. 31, 2010). However, VA noted that the most recent National Academy of Sciences (NAS) Institute of Medicine (IOM) committee report, Veterans and Agent Orange: Update 2008 (Update 2008) noted that "PD [Parkinson's Disease] must be distinguished from a variety of [P]arkinsonian syndromes, including drug-induced [P]arkinsonism and neurodegenerative diseases, such as multiple systems atrophy, which have [P]arkinsonian features combined with other abnormalities * * * Pathologic findings in other causes of [P]arkinsonism show different patterns of brain injury [than with PD]." Veterans and Agent Orange: Update 2008, The National Academies Press (Washington, DC, 2009), pp. 515-16. VA determined that "[e]xpansion of VA's definition beyond Parkinson's disease is not warranted under such circumstances, particularly in light of the IOM's findings quoted above that "PD must be distinguished from a variety of [P]arkinsonian syndromes." 75 Fed. Reg. at 53204. The Veteran was afforded VA examinations in June 2010, January 2011, and March 2011. The June 2010 brain and spinal cord examiner stated that the Veteran "has been diagnosed and treated for Parkinson's disease," and that he also had symptoms associated with dementia and cerebrovascular accidents. However, the Veteran has been diagnosed with Parkinsonism, not Parkinson's disease. The examiner did not provide an etiological opinion, and it appears that he was reiterating what he believed to be a preexisting diagnosis of Parkinson's disease. In the January 2011 examination, a psychologist stated that the Veteran had been previously diagnosed with Parkinson's disease, and that the Veteran exhibited dementia that was likely caused by the Parkinson's, based on the timing of the onset of cognitive symptoms. That examiner also based his opinion on what he believed to be a preexisting diagnosis of Parkinson's disease. In the March 2011 examination, the examiner diagnosed small vessel white matter disease with lacunar infarcts, dementia with Lewy bodies, and Parkinson symptoms. He stated that dementia with Lewy bodies and small vessel white matter disease with lacunar infarcts both result in Parkinson's symptoms, and that the Veteran's symptoms were secondary to those conditions, and less likely than not caused by primary Parkinson's disease. However, the examiner also stated that of the three factors necessary to diagnose Parkinson's disease, the Veteran currently exhibited one, and that the other two symptoms seemed to be well controlled by the Veteran's medication, which explained their absence. The examiner did not opine whether the diagnosed disability was related to service, to include herbicide exposure therein. Additionally, the Veteran's private treatment records mentioned a Social Security disability claim in 2008, and in 2009 the Veteran's wife stated that the Veteran was currently on disability. It is unclear whether such claim would provide any relevant information concerning the Veteran's neurological disorder. Thus, on remand, the Veteran should be asked if his claim for SSA benefits was related to his claimed neurological disorder and if so, such records should be requested on remand. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The Veteran should also be given the opportunity to identify any additional providers who have treated him for his neurological disorder, and any additional, relevant VA treatment records should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran whether his claim for disability benefits from the Social Security Administration (SSA) included his symptoms consistent with Parkinsonism. If so, the RO should request copies of any SSA disability benefit determinations as well as any copies of the medical records on which such determinations were based. If the records are not available, the claims file should be annotated to reflect such and the Veteran should be notified of such. 2. Ask the Veteran to identify any private providers who have treated him for his Parkinsonism complaints since February 2011 in addition to his primary private neurologist. After securing any necessary authorization, request any relevant records identified, including updated records from the Veteran's primary neurologist. Additionally, obtain all relevant VA treatment records for the Veteran dating since February 2011. If any requested records are not available, the claims file should be annotated as such and the Veteran notified of such. 3. After the above has been completed to the extent possible, forward the claims file and a copy of this remand to a VA neurologist for an opinion as to the nature of the Veteran's disability, variously noted as small vessel white matter disease with lacunar infarcts and Lewy body dementia and Parkinsonism, but claimed as Parkinson's disease. After reviewing the claims file, the neurologist should indicate whether the Veteran suffers from Parkinson's disease as opposed to Parkinsonism or other similar disease. The neurologist should explain the reasoning for the diagnosis given. If the neurologist concludes the Veteran does not suffer from Parkinson's disease, the neurologist should provide an opinion as to whether the Parkinsonism and small vessel white matter disease with lacunar infarcts and lewy body dementia, or other diagnosed disease resulting in Parkinson-like symptoms, at least as likely as not (a 50 percent probability or greater) had its onset in service or can otherwise be etiologically attributed to service, to include in-service exposure to herbicides. In providing his or her opinions, the neurologist should presume that the Veteran was exposed to herbicides during service in the Republic of Vietnam. A rationale for each opinion reached should be provided. If the neurologist cannot provide the requested opinions without resorting to speculation, it should be so stated. If the neurologist determines that an examination or any tests are necessary to render the opinion, such should be authorized. 4. After completing the requested actions, and any additional action deemed warranted, the RO should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ K. A. BANFIELD 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).