Citation Nr: 18152632 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 15-41 789 DATE: November 23, 2018 ORDER The petition to reopen a claim of service connection for multiple sclerosis (MS) is granted. REMANDED Entitlement to service connection for Parkinson’s Disease, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for a speech condition is remanded. Entitlement to service connection for a breathing condition is remanded. Entitlement to service connection for a bilateral leg condition is remanded. Entitlement to service connection for memory loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include dementia, is remanded. Entitlement to service connection for multiple sclerosis, to include as due to herbicide agent exposure, is remanded. FINDING OF FACT 1. The April 1994 rating decision that denied service connection multiple sclerosis was final. 2. The evidence received since the April 1994 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the service connection claim for MS. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for multiple sclerosis. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the U.S. Army from May 1968 to August 1971; he had service in the Republic of Vietnam. On his December 2015 substantive appeal, the Veteran requested a Board hearing. A hearing clarification letter was sent to the him and his representative in September 2018. However, no response was received. Petition to Reopen Applicable law provides that an RO decision that is not appealed becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Once a decision becomes final, new and material evidence is required to reopen the claim that was denied. 38 U.S.C. § 5108 provides that “if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” Regulations provide that “new” evidence is existing evidence not previously submitted to agency decision-makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and readjudicated on the merits. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The law provides that evidence proffered by the Veteran to reopen his claim is presumed credible for the limited purpose of ascertaining its materiality. See Justus v. Principi, 3 Vet. App. 510, 512 (1992). 1. Whether new and material evidence has been received to reopen a claim of service connection for multiple sclerosis. The RO denied service connection for multiple sclerosis in an April 1994 rating decision due to a lack of diagnosis. This decision became final in April 1995. The evidence submitted after April 1994, including VA medical treatment records and statements in support of his claim, relates to unestablished facts necessary to substantiate this service connection claim. Specifically, a November 1989 treatment record submitted in February 1997 showed a diagnosis of MS. Therefore, the Board finds that this claim should be reopened.   REASONS FOR REMAND 1. Entitlement to service connection for Parkinson’s Disease, to include as due to exposure to herbicide agents, is remanded. 2. Entitlement to service connection for a speech condition is remanded. 3. Entitlement to service connection for memory loss is remanded. 4. Entitlement to service connection for an acquired psychiatric disorder, to include dementia, is remanded. 5. Entitlement to service connection for a bilateral leg condition is remanded. 6. Entitlement to service connection for a breathing condition is remanded. The Veteran was scheduled for a VA examination on March 29, 2014; however, there is nothing in the record showing he was notified of the scheduled exam. He was mailed a letter dated March 13, 2014, informing him of the evidence needed to establish entitlement to his claims; however, the notice did not discuss scheduling or requiring him to report to an exam. Moreover, in his October 2015 substantive appeal, he indicated that he did not receive a letter requesting him to go to VA. Therefore, the Board finds that a new examination should be scheduled and the Veteran should be provided with proper notice, mailed to his address of record. Treatment records show evidence of slurred speech, leg weakness, breathing problems, and complaints of impaired memory. His daughter also noted changes in her father such as saying odd things in conversation and occasionally, he will lose track of his surroundings. The claims of service connection for a speech condition, memory loss, mental condition, breathing condition, and bilateral leg condition should also be remanded as they may be considered as secondary to Parkinson’s.   7. Entitlement to service connection for multiple sclerosis (MS) is remanded. As per the decision above, the claim for MS has been reopened; however, there is not enough evidence to make an adequate decision. In this case, the Veteran has a current diagnosis and there is some indication that his MS may have had its onset during active duty based on service treatment records showing a suspected diagnosis. Therefore, on remand, the Veteran should be afforded a VA examination to determine the etiology of his claimed condition. Records also show the Veteran is in receipt of Social Security (SSA) benefits; therefore, any SSA records should be sought and associated with the record. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records, as well as SSA records. 2. Schedule the Veteran for a VA examination to determine the nature of his Parkinson’s (and related conditions), to include whether he has a current diagnosis. The Veteran served in the Republic of Vietnam, and is presumed to have been exposed to herbicide agents, to include Agent Orange. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the following: Does the Veteran have Parkinson’s disease? 3. Schedule the Veteran for a VA examination to determine the nature of his claimed memory loss, bilateral leg, speech, breathing, and mental conditions, to include whether he has current diagnoses, and to obtain opinion as to whether such diagnoses are due to service – including his Parkinson’s disease. (a.) Does the Veteran have current diagnoses of any bilateral leg, speech, breathing, and mental conditions, as well as memory loss? (b.) Is it as least as likely as not that any current diagnoses of the above conditions were caused and/or aggravated by the Veteran’s Parkinson’s diagnosis? 4. Schedule the Veteran for a VA examination to determine the nature of his claimed multiple sclerosis, to include whether he has a current diagnosis, and to obtain opinion as to whether such diagnosis is due to service – including his presumed exposure to herbicide agents. The examiner should provide an opinion as to the following: (a.) Does the Veteran have multiple sclerosis? (b.) Is it at least as likely as not (50 percent probability or greater) that any current multiple sclerosis diagnosis, is related to his active duty service, to include as due to exposure to herbicide agents, such as Agent Orange? (c.) Did the Veteran’s multiple sclerosis manifest within 7 years of his discharge from service? The examiners are asked to provide a full rationale for any opinions rendered. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel