Citation Nr: 1605943 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 14-40 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for Parkinson's Disease, to include as due to herbicide exposure. 2. Entitlement to service connection for dementia, to include as due to exposure to contaminated water at Camp Lejeune. REPRESENTATION Appellant represented by: Marc Whitehead, Attorney at Law ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran or his representative submitted additional evidence since the Veteran filed his substantive appeal in November 2014. Neither the Veteran nor his representative requested in writing that this additional evidence be reviewed by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board may review the additional evidence in the first instance. See 38 U.S.C.A. § 7105(e) (2014). The Veteran's claim of service connection for dementia relates to contaminated drinking water at Marine Corps Base Camp Lejeune, North Carolina. On December 17, 2015, the Secretary of VA announced plans to propose expanded disability compensation eligibility for Veterans exposed to contaminated water at Camp Lejeune. The announcement, however, does not apply to this case because the Veteran's dementia is not included in the list of conditions to be covered by the announced proposal. This opinion does not apply to VA health care eligibility for which neurobehavioral effects is a qualifying health condition. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam from July 1966 to November 1966. 2. The Veteran has a current Parkinson's Disease diagnosis. 3. Dementia was not manifest during service. Dementia is not attributable to service. An organic disease of the nervous system was not manifested in service or within the one-year presumptive period following service. CONCLUSIONS OF LAW 1. Parkinson's Disease is presumed to have been incurred in wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 2. Dementia was not incurred in or aggravated during service and an organic disease of the nervous system may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). To the extent the action taken herein below is favorable to the Veteran, further discussion of the VCAA with respect to the Parkinson's Disease claim is not necessary at this time. The Veteran was provided VCAA compliant notice by way of a December 2012 correspondence. The correspondence indicated it was applicable to the claim of Parkinson's Disease. A correspondence dated October 2013 acknowledged the Veteran's claim of service connection for dementia as due to contaminated water at Camp Lejeune, North Carolina. This correspondence did not contain VCAA notice in addition to the December 2012 correspondence. However, a Statement of the Case was issued April 2014, which identified the laws and regulations applicable to the dementia claim. Although notice directly identifying dementia as the claimed condition was not issued prior to the rating decision, the Veteran did have notice via the VCAA notice relating to Parkinson's Disease. Such notice is equally applicable to his claim. Furthermore, the Board finds that any notice errors were cured by the April 2014 SOC, and there has been no prejudice shown by the timing of such cure. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In that regard, the Veteran's service treatment records, VA treatment records, private treatment records, military personnel records, and lay statements have been associated with the record. In March 2014, VA rendered a medical etiological opinion with respect to his dementia and its etiology by a subject matter expert on the Camp Lejeune Contaminated Water Project. The VA examiner reviewed the evidence of record, and rendered a medical opinion based upon the facts of the case and the examiner's knowledge of medical principles. The examiner did not conduct an in-person examination of the Veteran because he found that the existing medical evidence in the file provided sufficient information on which to prepare the opinion and such an examination would likely provide no relevant evidence. Based on the foregoing the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for an organic disease of the nervous system, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis 1. Parkinson's Disease. The Veteran claims he has Parkinson's Disease as a result of exposure to herbicides in service. For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent (including Agent Orange), a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f) (West 2014). "Service in the Republic of Vietnam" means actual service in-country in Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (VA's requirement that a Veteran must have "stepped foot" on landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute). When a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). To be service connected under this presumption, the disease shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Parkinson's disease is one of the enumerated diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. In this case, the record shows that the Veteran had service in the Republic of Vietnam from July 1966 to November 1966. Thus, he had exposure during the relevant time period. A March 2013 VA examination report stated that there was no evidence to suggest Parkinson's Disease based on the results of the examination. The examiner did not appear to address whether the medical records showed any clinical signs for Parkinson's Disease. The examiner stated that "I would just simply say that based on today's examination, there are none." The examination report further noted motor preservation, and the Veteran's tendency to fall. There was no apraxia or neglect identified. The Veteran's speech had a nonfluent quality to it. He was pleasant and no agitation was identified. At times it appeared he may have had some orolingual dyskinesias. Direct muscle testing was limited because of attention and concentration deficits. There was some element of increased tone in the lower extremities and this may have represented paratonia. There was no obvious spasticity. There was no rest tremor identified nor was there any bradykinesia. His strength generally appeared to be intact and bulk appeared to be normal. In May 2015, the Veteran submitted a disability benefits questionnaire (DBQ) from a private physician. The DBQ noted that the Veteran now has or has been diagnosed with Parkinson's Disease. The DBQ reported that the Veteran had a moderate balance impairment, moderate bradykinesia or slowed motion, mild loss of automatic movements, moderate speech changes, a faint tremor in the hands at rest, mild rigidity on the left upper extremity. The DBQ also note that other manifestations/complications were progressive dementia/cognitive impairment with delusions/hallucinations. October 2012 private treatment records note cogwheel rigidity and bilateral mixed postural resting termor upon examination. They also note facial twitching. The assessment was that the Veteran definitely had extrapyramidal symptoms suggesting Parkinsonism. The Board finds that the foregoing evidence is approximately balanced as to positive and negative evidence as to whether there is a current Parkinson's Disease disability. The Board finds that neither the VA examination nor the private DBQ to have appreciably more probative weight than the other. With the October 2012 private treatment records indicating symptoms of Parkinson's disease (particularly cogwheeling), the Board accords the benefit of the doubt to the Veteran. As exposure to herbicides and an herbicide related disease are established, service connection is presumed. 2. Dementia. The Veteran claims that his dementia disability is due to exposure to contaminated water at Camp Lejeune. Under Veterans Benefits Administration (VBA) Training Letter 11-03 (April 27, 2011), persons residing or working at the U.S. Marine Corps Base were potentially exposed to contaminants present in the base water supply prior to 1987. The letter instructs that verification of service at Camp Lejeune between 1957 and 1987 establishes an in-service event. Therefore, the Veteran is considered to have been exposed to contaminants at Camp Lejeune. On this record, service treatment records are unremarkable for manifestations of dementia. Post-service medical records indicate that the Veteran began manifesting symptoms of either Alzheimer's Disease or Lewy Body Dementia in or around the year 2007. The March 2014 VA medical opinion stated that it is less likely as not the above condition/diagnosis is secondary to exposure to contaminated water (CLCW) at Camp Lejeune. The opinion noted that in 2007 the Veteran's brain MRI showed mild cortical blunting and his EEG revealed diffuse slowing consistent with Alzheimer's Disease (AD). The opinion further noted that the neuropsychiatry note of November 2012 indicated the Veteran's Lewy body dementia has "no known cause" and that the Veteran's dementia, AD type, has some mild overlap with the Lewy's variety dementia but Parkinson's disease was ruled out. The examiner stated that he could find no association with the etiology of dementia AD or Lewy's types and the water-borne toxins at Camp Lejeune after an extensive literature search. The examiner noted that the Veteran's "no observed adverse effect level" (NOAEL) and "lowest observed adverse effect level" (LOAEL) values are low as to "IRIS" and "ATSDR RFD" for the lifetime burden of the CLCW toxicants. Hence, according to the examiner, it is less likely his dementia is secondary to CLCW and more so in his instance to unknown factors coupled with the natural progression of aging. Based on a review of the evidence, the Board finds that service connection for dementia, including as due to exposure to contaminated water at Camp Lejeune, is not warranted. In this regard, the March 2014 VA medical opinion is highly probative evidence against a nexus between the Veteran's exposure to contaminated water and his dementia. The Board finds particularly probative the lack of an association found by the medical examiner after an extensive literature search. There is no medical opinion to the contrary on the record. The Veteran's lay assertions are outweighed by the VA medical opinion because the medical examiner has greater training, knowledge, and expertise than does the Veteran in discussing medical etiologies. Thus, service connection based on exposure to chemicals at Camp Lejeune has not been established, as the preponderance of the evidence is against the claim. With respect to service connection on a direct basis, there is no indication in the record that the Veteran manifest dementia in service or until many years after service. Rather, the most probative evidence establishes a remote, post-service onset The Veteran himself only claims the dementia is due to contaminated water at Camp Lejeune. Additionally, an organic disease of the nervous system was not noted during service or within one year of separation and the Veteran did not have characteristic manifestations of the disease during that time frame. 38 C.F.R. § 3.303(b). Any lay assertions of the Veteran to the contrary are outweighed by the service medical records, as they were created contemporaneously with service. Thus, the preponderance of the evidence is against a finding that the Veteran had manifestations of dementia in service or an organic disease of the nervous system in service or within one year of separation from service. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107 (2014); Alemany, 9 Vet. App. at 519. ORDER Service connection for Parkinson's Disease is granted. Service connection for dementia is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs