Citation Nr: 18156487 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 12-19 159 DATE: December 11, 2018 ORDER Service connection for Parkinson’s disease (claimed as a throat disorder), as a residual of a service-connected traumatic brain injury (TBI), is granted. FINDING OF FACT A clinical connection between the Veteran’s current throat symptoms and his Parkinson’s disease has been established by a June 2018 Veterans Health Administration (VHA) otolaryngologist. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, secondary service connection on a presumptive basis is warranted for Parkinson’s disease (claimed as a throat disorder), as a residual of a service-connected TBI. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), (d) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1967 to October 1968 in the United States Navy. Prior to this, he served in the Navy Reserve in 1965 and 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2014, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). In April 2015, the Veteran presented testimony at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims file. In December 2016, the Board remanded the current issue on appeal for further development. This case has since been returned to the Board for appellate review, after the RO substantially complied with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the same December 2016 Board decision, the Board granted in full the separate issue of service connection for a sleep disorder as secondary to a service-connected TBI. Thus, this issue is no longer on appeal before the Board. In an April 2018 opt-in letter from the RO, the Veteran was made aware of the Rapid Appeals Modernization Program (RAMP). The Veteran elected to participate in RAMP in the same month, selecting the option for “Higher-Level Review.” As a result, the RO withdrew several eligible pending compensation appeals in their entirety, to participate in VA’s RAMP initiative under the Appeals Modernization Act (AMA). However, the RO also advised the Veteran in a July 2018 letter that appeals (such as the current appeal) that have been activated by the Board are not eligible for RAMP processing. Therefore, since the current issue on appeal was activated by the Board, the Board will continue with adjudication pursuant to current appeals procedures (the legacy appeal process) for this particular issue only. In May 2018, the Board requested a specialist medical opinion from the VHA for the throat disorder issue on appeal. 38 C.F.R. § 20.901(a) (2017); see 38 U.S.C. §§ 5109(a), 7109(a) (2012). A VHA clinical report from a Board-certified otolaryngologist, dated in June 2018, has been associated with the claims file. As required by VA law and regulation, in August 2018, the Board provided the Veteran and his representative copies of the VHA report and afforded them time to respond with additional evidence or argument. See 38 C.F.R. § 20.903 (2017). In October 2018, the Veteran’s representative responded with a written brief presentation. Thus, the case is again ready for Board consideration. VA’s Duty 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. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 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) (2017). In the decision below, the Board has granted the Veteran’s claim for service connection for Parkinson’s disease (claimed as a throat disorder). Therefore, for the benefits sought on appeal have been granted in full for this particular issue. Accordingly, regardless of whether the notice and assistance requirements have been met with regard to this issue, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Service Connection for Parkinson’s Disease (“Throat Disorder”) Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). But VA has a duty to consider a claim under all theories of entitlement if raised by the evidence of record. VA must fully and sympathetically develop a veteran’s claim to its optimum, and that requires VA to determine all potential claims raised by the evidence, applying all relevant laws and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In addition, the U.S. Court of Appeals for Veterans Claims (Court) has clarified that a claimant’s alternate theories of entitlement to service connection are encompassed within a single claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006); see also Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff’d 421 F.3d 1346 (Fed. Cir. 2005). In this regard, a disability can also be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). VA is to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). The Federal Circuit Court has held that medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran’s military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In determining whether either service connection or secondary service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Veteran has raised several theories of entitlement for service connection for a throat disorder: (1) The Veteran contends that he has a chronic throat condition (described as soreness and difficulty swallowing), which is caused or aggravated by his cochlear implants for his service-connected hearing loss. He describes his throat irritation being caused or worsened by drainage from his ear into his throat, due to his cochlear implants for his hearing loss. See April 2015 Travel Board hearing testimony at pages 3-9; (2) The Veteran contends that he has a chronic throat condition (described as soreness and difficulty swallowing), which is caused or aggravated by his already service-connected TBI. See December 2011 claim; (3) The Veteran contends that his tonsillitis / sinusitis, which was noted to have preexisted his March 1967 entrance into the Navy, permanently increased in severity beyond the natural progression of the disability during his service in the Navy from March 1967 to October 1968 (in other words, although his throat condition preexisted service, it was permanently worsened by service); and (4) The Veteran contends that he has a chronic throat condition (described as soreness and difficulty swallowing), which began during or is otherwise related to his service in the Navy from March 1967 to October 1968. Upon review of the evidence of record, the Board finds that secondary service connection on a presumptive basis for Parkinson’s disease (claimed as a throat disorder), as a residual of an already service-connected TBI, is warranted. The Board will briefly outline the relevant VA law pertaining to presumptive secondary service connection for residuals of in-service TBIs. That is, due to the underlying in-service TBI the Veteran sustained (as will be discussed in detail below), the Board has specifically considered the presumptive provisions 38 C.F.R. § 3.310(d). Under 38 C.F.R. § 3.310(d), in a veteran who has a service-connected TBI, the following shall be held to be the proximate result of the service-connected TBI, in the absence of clear evidence to the contrary: (i) Parkinsonism, including Parkinson’s disease, following moderate or severe TBI; (ii) Unprovoked seizures following moderate or severe TBI; (iii) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe TBI; (iv) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; or (v) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI (emphasis added). Thus 38 C.F.R. § 3.310(d)(1) entails presumptive service connection for the above disabilities, most notably Parkinsonism. The determination of the severity level (mild, moderate, or severe) of the underlying TBI is based on the TBI symptoms at the time of the injury or shortly thereafter. The TBI does not have to meet all the criteria listed under a certain severity level in order to classify the TBI at that severity level. If a TBI meets the criteria in more than one category of severity, then the TBI should be ranked at the highest level in which a criterion is met, except where the qualifying criterion is the same at both levels. 38 C.F.R. § 3.310(d)(3). A TBI is mild in severity if there is normal structural imaging, loss of consciousness for up to 30 minutes, alteration of consciousness or mental statement for a moment to up to 24 hours, post-traumatic amnesia for up to a day, and a Glasgow Coma Scale ranging from 13 to 15. A TBI is moderate in severity if there is normal or abnormal structural imaging, loss of consciousness from 30 minutes to less than 24 hours, alteration of consciousness or mental state for more than 24 hours, post-traumatic amnesia from one to 7 days, or Glasgow Coma Scale from 9-12. A TBI is severe if there is normal or abnormal structural imaging, loss of consciousness for more than 24 hours, alteration of consciousness or mental state for more than 24 hours, post-traumatic amnesia for more than 7 days or a Glasgow Coma Scale of 3-8. See 38 C.F.R. § 3.310(d)(3). The resultant disabling effects of a TBI event beyond those that follow immediately from the acute injury to the brain are known as TBI residuals or TBI sequelae. The signs and symptoms of TBI residuals can be organized into the three main categories of physical, cognitive, and behavioral / emotional residuals for evaluation purposes. TBI residuals can resolve in a short period of time, persist chronically or permanently, or may also have a delayed onset. The first and most fundamental requirement for any service-connection claim, on either a direct or secondary basis, is the existence of a current disability. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the Veteran has been diagnosed with a number of conditions potentially relevant to his reported sore throat and difficulty swallowing: sinusitis, pharyngitis, and allergic rhinitis that are interrelated conditions causing post-nasal drip (see November 2013 VA examination and March 2017 VA family medicine examination); GERD / heartburn (see July 2012 VA esophageal examination); tonsillitis (see STRs); bilateral mastoiditis (see December 2011 private MRI of the head); anaphylaxis or “throat closes up” with multiple food items (see November 2012 VA pharmacy outpatient note); otitis media status post right myringotomy (see February 2011 and March 2011 and April 2011 private ENT physician reports); and Parkinson’s disease (see June 2018 VHA otolaryngologist opinion and 2017 and 2018 VA treatment records). Thus, the Veteran clearly has current disorders potentially causing throat symptoms. This fact is clear. As to the second requirement of in-service incurrence, the Veteran has already been service-connected for an underlying TBI that occurred sometime in 1968 during active service in the Navy. The Veteran reported that sometime in 1968, while waiting for a bus, he was attacked close to his assignment at Alameda Naval Air Station in Oakland, California. He indicates the attack was a random, racially motivated attack. He was struck on the back of the head by several other individuals. He was knocked unconscious. He was hospitalized for 2-3 days in a civilian hospital, followed by a two-week period of hospitalization in a military hospital. Both sets of in-service records are unavailable. The Veteran has repeatedly stated he has little to no memory of the attack and the subsequent hospitalization. However, as to the in-service TBI, a June 1968 STR did confirm the Veteran had sutures removed for a forehead laceration at that time. He is already service-connected for this forehead laceration. Service personnel records (SPRs) also document that the Veteran was stationed for active duty at the U.S. Naval Air Station Alameda, California at various times in 1967 and 1968. Moreover, the RO has already assessed the description of the in-service TBI to be credible. In this regard, the RO already service-connected the Veteran for the in-service TBI with residuals of memory loss and post-concussive headaches. Also, in the earlier December 2016 Board decision, the Board service-connected the Veteran for a sleep disorder as an additional residual of the Veteran’s service-connected TBI with headaches. Importantly, the Board determined that the Veteran’s in-service 1968 TBI injury was “moderate” to “severe” due to loss of consciousness for more than 24 hours, alteration of consciousness or mental state for more than 24 hours, and post-traumatic amnesia for more than 7 days. See 38 C.F.R. § 3.310(d)(3). These facts involving the already service-connected TBI are not in dispute. As to the third and final requirement of a nexus, under 38 C.F.R. § 3.310(d)(1)(i), Parkinsonism, including Parkinson’s disease, following “moderate” or “severe” TBI is listed as one of the presumptive conditions associated with a TBI injury. The nexus between the Veteran’s current Parkinson’s disease and the in-service TBI is presumed in such instances. To that effect, a presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted. . . . A legal device which operates in the absence of proof to require that certain inferences be drawn from the available evidence. BLACK'S LAW DICTIONARY 1185 (6th ed. 1990). "A presumption involves an assumption that a fact exists, based on the known or proven existence of some other fact or group of facts. See Black's Law Dictionary 1203 (7th ed. 1999)." McGee v. Nicholson, 20 Vet. App. 472, 477 (2006). The Veteran in the present case meets the necessary requirements for presumptive service connection on a secondary basis under 38 C.F.R. § 3.310(d)(1)(i). The Board previously determined that the Veteran’s in-service 1968 TBI injury was “moderate” to “severe” due to loss of consciousness for more than 24 hours, alteration of consciousness or mental state for more than 24 hours, and post-traumatic amnesia for more than 7 days. See 38 C.F.R. § 3.310(d)(3). Furthermore, the Veteran has a current diagnosis of Parkinson’s disease. See 2017 and 2018 VA treatment records. In a March 2017 private Kearny Clinic treatment record written by Dr. T.L.P., MD, a diagnosis of Parkinson’s disease was first rendered. This diagnosis was based on the Veteran’s observed tremor, shuffling gait, and difficulty standing and walking. VA treatment records dated in 2017 document the Veteran was prescribed carbidopa 25 / levodopa 100mg tab 2 tablets by mouth three times a day for Parkinson’s disease. And most importantly, a June 2018 VHA otolaryngologist opined the Veteran’s Parkinson’s disease contributes to his swallowing issues in his throat. Thus, a connection between the Veteran’s throat symptoms and his Parkinson’s disease has been established. In light of the above evidence, and in the absence of clear evidence to the contrary, it is presumed the Veteran’s current Parkinson’s disease is proximately due to or the result of his service-connected TBI. 38 C.F.R. § 3.310(d)(1)(i); Velez v. West, 11 Vet. App. 148, 158 (1998). In the present case, there is no clear evidence to the contrary against presumptive secondary service connection. Accordingly, resolving doubt in the Veteran’s favor, the evidence supports secondary service connection on a presumptive basis for Parkinson’s disease (claimed as a throat disorder), as a residual of an in-service TBI. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, Board has also considered whether service connection is warranted for all of the Veteran’s other throat disorders identified in the record. In this vein, VA must fully and sympathetically develop a veteran’s claim to its optimum, and that requires VA to determine all potential claims raised by the evidence, applying all relevant laws and regulations. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The Court has held that a claimant’s identification of the benefit sought does not require technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). The Court has further held that a claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim). Thus, in the present decision the Board has considered whether service connection is warranted for all of the Veteran’s throat diagnoses identified in the record. With regard to the Veteran’s GERD / heartburn for which he takes antacids (see July 2012 VA esophageal examination), STRs are negative for any complaint, treatment, or diagnosis for a stomach or reflux disorder. In addition, the July 2012 VA esophageal examiner after reviewing the pertinent evidence in the claims file opined that the Veteran’s current stomach condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. As such, there is probative medical evidence of record that clearly weighs against a relationship between his current stomach problems and his service in the Navy. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). In fact, the Veteran has submitted no probative medical evidence of a nexus on this issue. During the course of the appeal, the Veteran has also been diagnosed with bilateral mastoiditis (see December 2011 private MRI of the head); anaphylaxis or “throat closes up” with multiple food items (see November 2012 VA pharmacy outpatient note); and otitis media status post right myringotomy (see February 2011 and March 2011 and April 2011 private ENT physician reports). With regard to a nexus, there is no probative medical evidence of record linking any of these conditions with his service in the Navy. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). In fact, the Veteran has submitted no probative medical evidence of a nexus for these conditions. With regard to secondary service connection, there is no probative evidence of record establishing that the Veteran’s service-connected cochlear implants from his hearing loss or his service-connected TBI caused or aggravated any of his current throat conditions. 38 C.F.R. § 3.310(a), (b). No medical professional of record has provided an opinion to support these theories of secondary service connection. In fact, there is extensive clinical evidence of record confirming otherwise. The June 2018 VHA otolaryngologist described the Veteran’s current throat problems as due to throat hypersensitivity or reaction from Parkinson’s disease, allergic rhinitis associated with post-nasal drainage, and GERD. Symptoms include sore throat, throat irritation, globus sensation, painful swallowing, and dysphagia. But there was no medical literature to support any association by causation or aggravation between the Veteran’s service-connected cochlear implants from his hearing loss or his service-connected TBI and his current throat conditions. In addition, a March 2017 VA family medicine examiner opined the Veteran’s current pharyngitis is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected hearing loss. Finally, at his Navy Reserve and entrance examinations into active service in the mid-1960s, physician summaries noted preexisting sinusitis and tonsillitis with mild congestion and chronic and frequent colds. These conditions existed prior to active duty. This is undisputed. With regard to aggravation of the preexisting sinusitis and tonsillitis condition during active service in the Navy from 1967 to 1968, the STRs and the post-service medical and lay evidence of record fail to establish permanent worsening of these conditions during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In other words, there was no permanent or measurable increase shown beyond normal progression. The Veteran has not established aggravation during service. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Thus, the presumption of aggravation does not apply here. Hill v. McDonald, 28 Vet. App. 243, 252-53 (2016). In this regard, during active duty from 1967 to 1968 in the Navy, a July 1967 STR documented a complaint of sore throat x two days, with no diagnosis. The Veteran was given a tablet for his throat. There was no pus formation and no inflamed tonsils. A latter July 1967 STR recorded minimal otitis media. An October 1967 STR again documented sore throat x two days. Importantly, a September 1968 STR discharge examination demonstrated a normal mouth and throat. Post-service, a November 2013 VA examiner opined that although the Veteran’s sinusitis and tonsillitis disabilities preexisted his service in the Navy, these disabilities were not aggravated beyond their normal progression during his active service, to include by his in-service TBI. And after a discussion of the pertinent in-service and post-service clinical evidence, the June 2018 VHA otolaryngologist opined the Veteran did not have a permanent increase in severity during service of his preexisting sinusitis and tonsillitis. Therefore, the weight of the evidence does not reveal permanent aggravation of his preexisting sinusitis and tonsillitis conditions noted upon entry into service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Accordingly, the preponderance of the evidence is against service connection for all other throat conditions the Veteran has, with the exception of his Parkinson’s disease. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. Rubin, Counsel