Citation Nr: 1608144	
Decision Date: 03/01/16    Archive Date: 03/09/16

DOCKET NO.  09-18 765A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for psychiatric disability, to include schizophrenia and posttraumatic stress disorder (PTSD).  

2.  Entitlement to service connection for Parkinson's disease, to include as due to in-service exposure to herbicide agents (Agent Orange) or other toxins.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and a housemate



ATTORNEY FOR THE BOARD

D. Schechter, Counsel


INTRODUCTION

The Veteran served on active duty from June 1975 to June 1979 and from May 1980 to May 1984.

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  

In January 2010 the Veteran testified at a hearing before a Decision Review Officer of the RO.  In April 2015 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  Transcripts of the hearings are of record.  

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).   

The issue of entitlement to service connection for psychiatric disability is addressed in the REMAND that follows the ORDER section of this decision.


FINDINGS OF FACT

1.  The Veteran was exposed to Agent Orange in service in the course of duties as a chemical technician at the Cherry Point Marine Corps Air Station.  

2.  The Veteran developed Parkinson's disease subsequent to service.



CONCLUSION OF LAW

Parkinson's disease is presumed to have been incurred in service.  38 U.S.C.A. §§ 1116, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim.  In addition, the evidence currently of record is sufficient to substantiate his claim.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2015).

II.  Legal Criteria

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Parkinson's disease is among the diseases subject to presumptive service connection on the basis of herbicide exposure.  See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).

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 a 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 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53   (1990). 

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519   (1996), citing Gilbert, 1 Vet. App. at 54.

III.  Factual Background and Analysis

The Veteran contends that his early-onset Parkinson's disease developed as a result of chemical exposures in service, including exposure to herbicide agents.  In a May 2015 letter, a private treating neurologist, J.B., M.D., reported that he diagnosed the Veteran with Parkinson's disease in 2006.  

The Veteran's Parkinson's disease claim centers around the Veteran's duties at the Cherry Point Marine Corps Air Station (MCAS) in North Carolina, consistent with his primary military occupational specialty (MOS) as listed on his DD214 for the service period from June 1975 to June 1979, of "chemical technician," which the DD 214 indicates is equivalent to the civilian job of "decontaminator."  

The Veteran provided testimony before the undersigned to the effect that he was exposed to chemicals including Agent Orange in the course of his duties at the Cherry Point MCAS.  However, as the psychiatric examiner noted in a report of VA examination of the Veteran in April 2012, the Veteran may not be a reliable historian due to delusions resulting from his mental illness.  
 
The neurologist in his May 2015 letter notes the Veteran's history of having been exposed in service to hazardous materials as a "Nuclear Biological Warfare Specialist," as well as having been exposed to Agent Orange and other toxic materials in service.  The neurologist opines that it is at least as likely as not that the Veteran's Parkinson's disease is related to these in-service exposures.  Unfortunately, the neurologist provided no rationale and cited to no medical authority or research to support the causal link.  

In contrast, in a July 2015 letter, a private physician, A.M., M.D., stated that she had reviewed the Veteran's documents concerning hazards at Cherry Point Marine Corps Air Station, that she has conducted an interview with the Veteran and noted the Veteran's self-reported duties as a Nuclear, Biological, and Chemical Defense Specialist included his handling and disposal of toxic substances, and that she has reviewed relevant literature.  She then provided an opinion that it is at least as likely as not that the Veteran's Parkinson's disease was caused by his exposures to chemicals including herbicides in service.  

The physician A.M. notably lists her title on her letterhead as an environmental health consultant.  She is thus in the business of providing consultations and opinions addressing likely associations between environmental hazards and medical conditions.  Her letter is not limited to a brief opinion, but rather addresses in-depth the Veteran's potential exposures over the course of his duties at the Cherry Point Marine Corps Air Station (MCAS), relevant chemicals of concern, and their likely association with his development of Parkinson's disease.  She provides references including citations to relevant medical and epidemiological literature.  Thus, she appears to be well-informed concerning the likelihood of the Veteran having been exposed to herbicides and other toxic agents in service and his having developed Parkinson's disease due to such exposures.  

The Veteran was afforded a VA examination in November 2013 to address his Parkinson's disease.  The examiner noted a July 8, 2011, updated list of possible contaminants at the Cherry Hill MCAS, but observed that the list was "extensive" and that it was not clear from the record what contaminants may potentially be implicated in causing neurological harm to the Veteran.  However, the examination report also indicates that the examiner is a nurse practitioner and does not suggest that she has any specialized expertise in addressing the likelihood that exposures in service caused or contributed to the Veteran's Parkinson's disease.

Associated with the record in April 2015 is a report of contaminants found at the Cherry Point MCAS.  This reported, by the Naval Facilities Engineering Command (NAVFAC), titled, Final - Tier II Sampling and Analysis Plan - Groundwater Treatment Zero-Valent Iron Permeable Reactive Barrier Pilot Study, Operable Unit I, Marine Corps Air Station, Cherry Point, North Carolina, goes into extensive detail as to the vast array of contaminants, including herbicide agents, found at the site.  In particular, attached Table 3-1 provides an extensive list of "Non-TCL Pesticides, Herbicides, and Insecticides" stored at "Site 83, Building 96, Former Pesticide Mixing Area."  

In light of the foregoing evidence supporting the claim, the Board finds that the Veteran was exposed to Agent Orange in service in the course of his duties as a chemical technician at Cherry Point MCAS.  Therefore, he is entitled to presumptive service connection for his Parkinson's disease.  


ORDER

Entitlement to service connection for Parkinson's disease is granted.


REMAND

The Veteran has a long-standing diagnosis of schizophrenia.  The Veteran's service treatment records, including in particular record of treatment in August 1978, reflect that he was treated for complained-of headaches with a "myriad of other symptoms."  While treating practitioners in service diagnosed tension headaches, the Veteran then persistently asserted that there was something more going on.  In service, in his discussion with medical practitioners, he associated multiple other symptoms with his headache condition, and reported that prescribed Fiorinal had not relieved his symptoms.  

Based on review of legible service treatment records, additional evaluation, including by an electroencephalogram performed in September 1978, does not appear to have resulted in in-service findings of additional neurological or psychiatric disability beyond headaches. 

However, the persistence of symptoms in service which the Veteran then linked to his headaches and about which he apparently had significant preoccupation, as well as degraded operational performance later in the Veteran's service up to shortly prior to separation from his second period of service, suggest that his psychiatric disability might have originated during service.

Unfortunately, many of the Veteran's service treatment records as contained within VBMS are illegible, making evaluation of what was found and diagnosed in service difficult.  The Veteran's service treatment records were contained on microfiche, and these were likely of limited legibility to begin with, resulting in still more difficulty when scanned and entered into VBMS.  The Board obtained rescanning of the records into VMBS, but "best available cop[ies]" (as indicated on several re-scanned VBMS service treatment records) are still frequently illegible.  Thus, ultimately, the Board must work with the evidence that is available.  

Because substantial portions of the Veteran's service treatment records are illegible, they should be considered as lost or destroyed for purposes of duties to assist and evidence that may serve to support the claim.  O'Hare v. Derwinski, 1 Vet.App. 365 (1991).  

The Veteran was afforded a VA psychiatric examination in April 2012 and that examiner did not have the claims file available for review.  Additionally, the examiner found it very difficult if not impossible to construct a reliable history due to the Veteran's presentation, which included significant delusions and hallucinations.  

A further psychiatric examination benefited by review of the record is required in furtherance of the Veteran's psychiatric disorder claim.  Once VA provides an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim.
 
2.  Ask the Veteran to provide clarifying information about his history of stressors experienced in service, possible mental health difficulties in service, and his history of psychiatric symptoms following service.  Inform the Veteran of alternative forms of evidence that may be submitted, based on the non-legibility of some service records.  

3.  Any indicated stressor development should be undertaken. 
 
4.  Thereafter, the Veteran should be afforded a VA examination by a psychiatrist or psychologist who has not previously addressed the Veteran's claim.  The RO/AMC should provide a statement to the examiner of any confirmed in-service stressors.  All other pertinent evidence of record must be made available to and reviewed by the examiner.  Any indicated studies should be performed.

The examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. 

The examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran has PTSD due to a confirmed in-service stressor, or due to a stressor which relates to "fear of hostile military or terrorist activity." 

The examiner should address in detail whether an in-service stressor reported by the Veteran supports a diagnosis of PTSD, whether the Veteran's symptoms relate to that in-service stressor, and whether the criteria for a diagnosis of PTSD are met.  If a diagnosis of PTSD is not made, the examiner should explain why the Veteran does not meet the criteria for the diagnosis. 

With respect to each additional acquired psychiatric disorder present during the period of the claim, the examiner should state an opinion as to whether there is a 50 percent or better probability that the disorder originated in service or is otherwise etiologically related to the Veteran's active service. 

The examiner is to be advised that VA recognizes that many of the service records are difficult to read or illegible, but the examiner should nonetheless endeavor to ascertain whether the service treatment and service personnel records support onset of a psychiatric disorder in service.  In particular, the examiner should consider whether the Veteran's complaints of headaches and many related symptoms in service unrelieved by prescribed Fiorinal, as well as the Veteran's reduced performance later in service and prior to service separation, support the onset of a psychiatric disability in service.  

The rationale for all opinions expressed must also be provided.  If the examiner is unable to provide any required opinion, he or she should explain why.
 
5.  The RO or the AMC should also undertake any other development it determines to be warranted.

6.  Thereafter, the RO or the AMC should readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should provide the Veteran and his representative with a Supplemental Statement of the Case and afford them an appropriate opportunity to respond before returning the case to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs