Citation Nr: 1646956 Decision Date: 12/15/16 Archive Date: 12/30/16 DOCKET NO. 16-18 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for Parkinson's disease, claimed as due to Agent Orange (AO) exposure. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied service connection for Parkinson's disease. In May 2016, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge from the RO in Oakland, California. A transcript of that hearing is of record. 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). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability, the record indicates that the disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4) (2015). The evidentiary requirement that the record indicates that the claimed disability may be associated with active service is a "low threshold." McLendon, 20 Vet. App. at 83. Here, a November 2013 Parkinson's disease disability benefits questionnaire completed by the Veteran's private physician, Dr. S., shows a diagnosis of Parkinson's disease. The Veteran has thus met the current disability requirement. Although service connection for Parkinson's disease is warranted on a presumptive basis for veterans who were exposed to AO in the manner indicated in VA statutes and regulations, 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii), (iv) (veterans who served in Vietnam and certain areas of Korea during certain time periods presumed exposed to AO are presumed service connected if diagnosed with certain listed diseases), the Veteran does not claim that he served in Vietnam or Korea. Nevertheless, a Veteran who has not been exposed to AO is such a fashion may allege that he has a disability related to AO exposure. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). The Veteran asserts that his current Parkinson's disease is related to his exposure to AO while stationed at the Clark Air Force Base (AFB) in the Philippines. The Veteran has asserted that AO was used on the base, to include for defoliation. He has also asserted that the transportation vehicles (cattle cars) that he went to work in were also used to transport AO and that aircrafts carrying AO passed through the base. In support of his assertions, he stated that he observed the smell of chemicals through the air conditioning vents and saw the routine spraying of chemicals on base. Also, he indicated that he saw the transportation vehicles carrying cans or drums of chemicals and that he saw C-123s. Moreover, the Veteran pointed to a March 1967 service treatment record, which showed that he was treated for a viral upper respiratory infection, organism undetermined. Service personnel records demonstrate that he served at the Clark AFB from April 1966 to October 1967. Based on the foregoing, the evidence indicates that the Veteran's current Parkinson's disease may be associated with active service, to include exposure to AO or other chemicals. Accordingly, the Board has determined that the "low threshold" necessary to trigger VA's duty to obtain an examination has been satisfied. See McLendon, 20 Vet. App. at 83. Therefore, as the Veteran has yet to be afforded a VA examination in connection with this claim, the Board finds that the claim must be remanded for him to be scheduled for a VA examination to determine the nature and etiology of his Parkinson's disease. The Board notes that, in the alternative, the Veteran contends that his Parkinson's disease is the result of AO exposure while stationed at the Keesler AFB in Mississippi. More specifically, he has asserted that water on the base was contaminated with AO. He indicated that the base was near a chemical plant that manufactured various chemicals, to include AO, and that during his time there, hurricane Betsy inundated the entire area, resulting in the release of herbicides from container cars that came from the plant. A review of the evidence of record shows that the AOJ did not undertake any efforts to determine whether the Veteran was exposed to AO at Keesler AFB. Thus, on remand, the AOJ should undertake any appropriate development to determine whether the claimed exposure occurred. Finally, as this matter is being remanded, the Veteran should be afforded an opportunity to submit additional relevant evidence, to include updated treatment records from Dr. S., if any. In this regard, treatment records from Dr. S. in the claims file only date to August 2013. Additionally, updated VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency). The Board notes that the most recent VA treatment records in the claims file date only to October 2013. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for Parkinson's disease, to include the dates of any such treatment. Ask the Veteran to complete authorizations for VA to obtain all records of his treatment for Parkinson's disease from Dr. S., and any other sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ shall attempt to obtain any relevant private treatment records for which a sufficient release is obtained. All efforts to obtain these records must be documented in the file. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159(e). 2. Obtain outstanding VA treatment records, to include records from October 2013 forward. 3. Take appropriate action to determine whether the Veteran was exposed to AO at Keesler AFB. 4. Then, schedule the Veteran for a VA examination in connection with his claim of entitlement to service connection for Parkinson's disease. The claims folder and a complete copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. All necessary tests and studies should be conducted, and the examiner should review the results of any testing and include them in the report. The examiner should then opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's currently diagnosed Parkinson's disease is related to active service, to specifically include the March 1967 upper respiratory infection and his reported exposures to AO. A complete rationale should accompany any opinion provided. If any requested opinion cannot be provided without resorting to speculation, the examiner should so state, and provide a supporting explanation as to why an opinion cannot be provided without resorting to speculation The examiner is advised that the Veteran is competent to report his observations of substances to which he has been exposed, as well as symptoms and treatment, and that his reports must be taken into account in formulating the requested opinion. 5. After the above development has been completed, readjudicate the claim for entitlement to service connection for Parkinson's disease. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).