Citation Nr: 1750149 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 11-06 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for tremors. 2. Entitlement to service connection for Parkinson's disease. 3. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1969 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of January 2010 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The January 2010 RO decision denied service connection for tremors and for psychiatric disability. As there are multiple other psychiatric diagnoses of record, the Board finds that it is more appropriate to characterize the claim broadly as one of entitlement to service connection for a psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The January 2012 RO decision denied service connection for Parkinson's disease. In August 2017, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. The issues have been recharacterized to comport with the evidence of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. At the August 2017 hearing before the Board, the Veteran withdrew his appeal concerning the issue of entitlement to service connection for tremors. 2. The evidence indicates that the Veteran served in the Korean Demilitarized Zone (DMZ), during the Vietnam era. 3. The Veteran is diagnosed with Parkinson's disease. 4. The Veteran's psychiatric disorder, diagnosed as a depressive disorder, is caused by his service-connected Parkinson's disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for tremors have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for service connection for Parkinson's disease have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1151(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 3. The criteria for service connection for a psychiatric disorder, diagnosed as a depressive disorder, as secondary to service-connected Parkinson's disease, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Withdrawn Claim The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. Here, at his August 2017 Board hearing, the Veteran withdrew his appeal as to the issue of entitlement to service connection for tremors. As such, there remain no allegations of errors of fact or law for appellate consideration as to that issue. Thus, the Board does not have jurisdiction to review the appeal, and the issue of entitlement to service connection for tremors is dismissed. II. Parkinson's Disease Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2015); see also Allen v. Brown, 7 Vet. App. 439 (1995). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e). (Under 38 C.F.R. § 3.309 (e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309 (e) (Note 3.). A Veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides (e.g., Agent Orange) are known to have been applied during that period, shall be presumed to have been exposed during such service to a herbicide agent (e.g., Agent Orange), unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran contends that he has Parkinson's disease that is related to service, to include as due to Agent Orange. He specifically maintains that his Parkinson's disease is a result of Agent Orange exposure in Korea. The Veteran reports that he served in the 7th Aviation Battalion, 7th Infantry Division, at Camp Casey in Korea and that he served on guard duty in the DMZ. He also indicates that he refueled aircraft and inhaled fumes, and that he bathed, cooked, and cleaned in water that had been contaminated by Agent Orange. The Veteran further indicates that he was assigned to place a powder-like defoliant around the barracks when he served at Camp Casey in Korea. The Veteran essentially asserts that he suffered from symptoms, such as muscle twitching, during his period of service which he believes are related to his Parkinson's disease. The Veteran served on active duty in the Army from January 1969 to July 1970. His service personnel records indicate that he served in Korea from August 1969 to July 1970, with the 7th Aviation Battalion, 7th Infantry Division. A September 2016 response from the Defense Personnel Records Information Retrieval System (DPRIS) indicates that the 1969 unit histories submitted by the 7th Aviation Battalion, 7th Infantry Division, and the 1969th 8th United States Chronology were reviewed and that the histories documented that the unit was located at Camp Casey in Korea. It was noted that the records do not document the use, storage, spraying, or transporting of herbicides, to include Agent Orange. The DPRIS also indicated that the records do not mention or document any specific duties performed by the 7th Aviation Battalion unit members along the DMZ. The Board notes that the Veteran served in in Korea from August 1969 to July 1970, with the 7th Aviation Battalion, 7th Infantry Division. Thus, he was present in Korea during the applicable time period that Agent Orange was used in accordance with 38 C.F.R. § 3.307(a)(6)(iv). Although the record does not specifically document that the Veteran served in a unit that operated in or near the Korean DMZ, the Veteran has specifically maintained that he was exposed to Agent Orange in Korea and that he performed guard duty in the Korean DMZ. Additionally, the DPRIS indicated that the unit histories submitted by the 7th Aviation Battalion, 7th Infantry Division, and the 1969th 8th United States Chronology, were reviewed and that the histories document that the Veteran's unit was located at Camp Casey in Korea. The Board finds the Veteran's statements regarding Agent Orange exposure in the Korean DMZ to be credible. Therefore, for the purposes of this decision, the Board will assume that the Veteran had Agent Orange exposure during service. The service treatment records do not show complaints, findings, or diagnoses of Parkinson's disease. Post-service private and VA treatment records show treatment for, and diagnoses of, Parkinson's disease. For example, February 2011, April 2011, and October 2011, VA treatment reports all show impressions of Parkinson's disease. The evidence shows the Veteran has current diagnoses of Parkinson's disease. Additionally, the Board finds credible his report that he served in the Korean DMZ during the Vietnam era as credible. Accordingly, the Board finds that the Veteran currently has Parkinson's disease and that such disability is related to his military service as a presumptive condition associated with Agent Orange exposure incurred during his service in Korea. See 38 C.F.R. §§ 3.307, 3.309(e). II. Psychiatric Disorder, to include PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2016). Further, 38 C.F.R. § 3.304(f) provides that if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. As discussed above, the Veteran is now service-connected for Parkinson's disease. He is also service-connected for tinnitus. The Veteran essentially contends that he has a psychiatric disorder, to include PTSD, which is related to service. He maintains that he suffered from psychiatric symptoms during service. The Veteran also reports that he has psychiatric problems as a result of a military sexual trauma that he suffered in a barracks shower during service. He indicates that he went absent without leave (AWOL) following the sexual attack. The Veteran reports that a recruit in his company committed suicide by swallowing razor blades, and that he had spinal meningitis. He essentially asserts that he suffered from psychiatric problems during service and since that time. The Veteran also maintains that his Parkinson's disease aggravates his psychiatric problems. The Veteran served on active duty in the Army from January 1969 to July 1970. His service personnel records indicate that he went AWOL, that he was counseled on several occasions, and that he had disciplinary actions, including an Article 15 and a Summary Court Martial. Such records indicate that the Veteran was discharged based on unsuitability. The service treatment records do not show treatment for psychiatric problems and do not refer to a military sexual trauma. Such records do indicate that the Veteran had a psychiatric examination. A June 1970 report from a mental hygiene service indicates that the Veteran had a psychiatric examination when he was referred by his commanding officer for an administrative separation. The examiner reported that the Veteran had been in the military for seventeen months and that he had served in Korea for approximately ten months. The examiner stated that since entering service, the Veteran had exhibited an inability to adjust to military life, which had manifested itself in a behavior disorder. It was noted that the Veteran's actions had resulted in numerous Article 15s and 2 Court Martials. The examiner added that the Veteran showed no desire or motivation to continue in service and that further treatment would be to no avail. The examiner indicated that he showed no signs of any serious psychiatric disorders or any organic brain disease. The examiner described the Veteran's condition as a character and behavior disorder and that he was not amendable to hospitalization, treatment in a military setting, disciplinary action, or reclassification to other forms of duty. Post-service private and VA treatment records, including VA examination reports, indicate that the Veteran was treated for variously psychiatric disorders, including anxiety; a generalized anxiety disorder; an anxiety state, not otherwise specified; depression; a depressive disorder, not otherwise specified; a major depressive disorder, not otherwise specified; a major depressive disorder, severe, with psychotic features; rule out a panic disorder, with agoraphobia; rule out a bipolar disorder, not otherwise specified; a schizoaffective disorder; probable PTSD; PTSD versus a generalized anxiety disorder; and PTSD. The Board notes that there are opinions of records, pursuant to December 2009 VA PTSD and mental disorders examination reports, and a November 2016 VA psychiatric examination report, that address the etiology of the Veteran's claimed psychiatric disorder, to include PTSD. December 2009 VA PTSD and mental disorders examination reports include notations that the Veteran's claims file was reviewed. Both examination reports provide essentially the same information. The diagnosis was malingering. The examiner indicated that, in summary, the Veteran's presentation was inconsistent with a diagnosis of service-connected PTSD or any other diagnosable medical condition. The examiner stated that a thorough review of the Veteran's claims file, as well as the information gleaned from psychological testing, and the Veteran's self-report, do not support a diagnosis of a service-connected psychiatric disorder. The examiner indicated that records reveal that particularly since 2008, the Veteran had wrestled with heightened stress, anxiety, and general disruptions in his identity after resigning from his position in the meat department of a grocery store. The examiner maintained that the Veteran's grossly exaggerated report of psychopathology precluded a diagnosis, aside from malingering. A November 2016 VA psychiatric examination report includes a notation that the Veteran's claims file was reviewed. The diagnosis was a depressive disorder due to a medical condition, with the medical condition listed as Parkinson's disease. The examiner indicated that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5 criteria. The examiner maintained that all of the Veteran's mood disturbance was secondary to Parkinson's disease. The examiner stated that because a psychiatrist, during the Veteran's period of service, noted that there was no evidence of any organic brain disorder while in service, the Veteran's depressive disorder due to Parkinson's disease was not a result of, or caused by, any military related experience. The examiner specifically related that the Veteran did not have PTSD. The probative value of medical opinion evidence "is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board observes that the examiner, pursuant to the December 2009 VA PTSD and mental disorders examination reports, diagnosed the Veteran with malingering and specifically found that the Veteran's presentation was inconsistent with a diagnosis of service-connected PTSD or any other diagnosable medical condition. The Board observes, however, that the examiner did not specifically address the numerous other psychiatric diagnoses of record. The requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Additionally, the examiner did not address whether the Veteran's service-connected Parkinson's disease caused or aggravated any diagnosed psychiatric disorder. In El-Amin v. Shinseki, 26 Vet. App. 136 (2013), a decision issued by the United States Court of Appeals for Veterans Claims (Court), the Court vacated a decision of the Board where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability. Therefore, the Board finds that the VA examiner's conclusion that the Veteran did not have any diagnosed psychiatric disorder is not probative in this matter. The Board notes that the examiner, pursuant to the November 2016 VA psychiatric examination, following a review of the claims file, specifically found that the Veteran had a psychiatric disorder, diagnosed as a depressive disorder, due to his service-connected Parkinson's disease. The Board finds that the examiner's opinion is the most probative in this matter. See Wensch v. Principi, 15 Vet. App. 362 (2001). In light of the evidence of record, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a psychiatric disorder, diagnosed as a depressive disorder, on a secondary basis. The Board therefore finds that the Veteran's psychiatric disorder, diagnosed as a depressive disorder, is due to or the result of his service-connected Parkinson's disease. Thus, secondary service connection is warranted. See 38 C.F.R. § 3.310. As the Board has granted secondary service connection it need not address direct service connection, or any other theories for service connection, in this matter. Additionally, at the August 2017 Board hearing, the Veteran stated that a grant of service connection for any psychiatric disorder would satisfy his appeal. ORDER The appeal of the issue of entitlement to service connection for tremors is dismissed. Service connection for Parkinson's disease is granted. Service connection for a psychiatric disorder, diagnosed as a depressive disorder, as secondary to a service-connected Parkinson's disease, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs