Citation Nr: 1807594 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-22 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Whether a timely substantive appeal was filed in response to the December 2012 statement of the case (SOC) that denied a service connection claim for Parkinson's disease. 2. Whether new and material evidence has been received to reopen a claim for service connection for Parkinson's disease. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD A-L Evans, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to June 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal of an Appeals Development decision dated in October 2013 and a July 2014 rating decision of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2016. A transcript of the hearing is in the Veteran's file. The issue of service connection for Parkinson's disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a December 2010 decision, the RO denied the Veteran's initial claim of service connection for Parkinson's disease. 2. VA received the Veteran's substantive appeal on February 21, 2013, which was greater than 60 days from the mailing of the SOC on December 6, 2012, rendering it final. 3. Evidence associated with the claims file since the December 2010 denial relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for Parkinson's disease. CONCLUSIONS OF LAW 1. The substantive appeal received on February 21, 2013, was not timely received. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.109, 19.32, 20.202, 20.302, 20.303, 20.305, 20.1103 (2017). 2. The December 2010 RO decision, which denied the Veteran's claim of service connection for Parkinson's disease, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of service connection for Parkinson's disease. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). II. Analysis Timeliness Claim Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished. 38 U.S.C. § 7105. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date the AOJ mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302. If an appeal is not perfected within the time specified by the regulation, the rating decision becomes final. 38 C.F.R. § 20.1103. An extension of the 60-day period for filing a substantive appeal may be granted for good cause. A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303. The Board finds the substantive appeal received in February 2013 was not timely received. The Veteran was denied service connection for Parkinson's disease in a December 2010 rating decision. In March 2011, the Veteran filed a timely notice of disagreement with that decision. In December 2012, the RO sent an SOC to the Veteran continuing to deny the claim. In the accompanying letter, the RO notified the Veteran that to complete his appeal, he must file a formal appeal within 60 days from the date of the SOC letter (dated December 6, 2012). He was notified that if the formal appeal was not received within this time period, his appeal would be closed. VA received the Veteran's substantive appeal on February 21, 2013, which was greater than 60 days from the mailing of the SOC on December 6, 2012. Neither the Veteran nor his representative filed a request in writing for an extension of the time limit for good cause during the appeal period. In the Veteran's November 2013 notice of disagreement with the October 2013 determination that he submitted an untimely substantive appeal, he asserted that he filed a timely substantive appeal noting that the substantive appeal had been sent on January 5, 2013. While the Board notes that date for which the Veteran signed the substantive appeal is January 5, 2013, the date it was received at the RO is indicated as February 21, 2013, as determined by the date stamp. Therefore, as the substantive appeal was not received within the 60 days from the mailing of the SOC, it cannot be considered timely. In conclusion, as the substantive appeal has been determined to be untimely, the December 2010 rating decision is now final. New and Material Claim The Veteran's claim for service connection for Parkinson's disease was most recently denied in a December 2010 rating decision. As noted above, the Veteran did not perfect an appeal to that rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the December 2010 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. A previously denied claim can be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the December 2012 decision, new evidence has been received, including the Veteran's testimony at this December 2016 Board hearing regarding handling C-123 aircraft parts during drills. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claim, and is neither duplicative nor cumulative of evidence previously received, the Board finds it to be new and material sufficient to warrant reopening the Veteran's claim for service connection. See Shade supra; 38 U.S.C. § 5108; 38 C.F.R. § 3.156. ORDER The substantive appeal received on February 21, 2013, was not timely received. As new and material evidence has been received, the claim of service connection for Parkinson's disease, is reopened and, to this extent only, the appeal is granted. REMAND The Veteran seeks service connection for Parkinson's disease. Specifically, the Veteran asserts exposure to Agent Orange at Westover Air Force Base. The Veteran's MOS was construction equipment operator. In support of his appeal, the Veteran has submitted articles regarding hazardous wastes at the Westover Air Force Base and contaminated C-123 aircrafts. At his December 2016 Board videoconference, the Veteran noted that he was assigned to the 819th squadron and was primarily assigned to the heavy equipment operational side of his squadron's responsibilities, to include transportation of products disposed on the base, running drills using C-123 aircraft parts, and offloading Conex boxes and barrels off of aircrafts. A review of the record shows that the Joint Services Records Research Center (JSSRC), in November 2010, indicated that available historical records did not document the spraying, testing, transporting, storage or usage of Agent Orange at Westover Air Force Base, Massachusetts. Also, a review of the Department of Defense list of herbicide spray areas and test sites outside the Republic of Vietnam reflected that Westover was not a listed location. The Board notes that the Health and Medicine Division (HMD) of the National Academy of Sciences, Engineering and Medicine released a report in January 2015 titled Post-Vietnam Dioxin Exposure in Agent Orange-Contaminated C-123 Aircraft. The report noted that active duty personnel in unit locations where a contaminated C-123 was assigned "may" qualify for benefits related to Agent Orange exposure. 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. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). 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. Although service connection for Parkinson's disease is warranted on a presumptive basis for veterans who were exposed to Agent Orange in the manner indicated in VA statutes and regulations, 38 U.S.C. § 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 Agent Orange 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 Agent Orange is such a fashion may allege that he has a disability related to Agent Orange exposure. See 38 U.S.C. § 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). In this case, the Veteran has met the current disability requirement. A private medical record dated in June 2010 and a June 2014 Parkinson's disease disability benefits questionnaire completed by the Veteran's private physician, Dr. R., show a diagnosis of Parkinson's disease. In a January 2011 private medical note, Dr. R. indicated a "possibility" of a service-related disability. Based on the foregoing, the evidence indicates that the Veteran's current Parkinson's disease may be associated with active service. 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 the Veteran contends that his Parkinson's disease is the result of Agent Orange exposure while stationed at Westover Air Force Base. A review of the evidence of record shows that the AOJ did not undertake efforts to determine whether the Veteran was exposed to Agent Orange at Westover Air Force Base based on exposure to any C-123 aircrafts or hazardous chemicals. 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. R., if any. Additionally, updated VA treatment records should also be obtained. See 38 U.S.C. § 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 March 2014. Accordingly, the case is REMANDED for the following action: 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. R., 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. Obtain outstanding VA treatment records, to include records from March 2014. 2. Take appropriate action to determine whether the Veteran was exposed to Agent Orange at Westover Air Force Base, to include transportation of products disposed on the base, running drills using C-123 aircraft parts, and offloading Conex boxes and barrels off of aircrafts. 3. Schedule the Veteran for a VA medical examination in connection with his claim of entitlement to service connection for Parkinson's disease. The entire electronic claim file must be reviewed by the examiner. The examiner is to conduct all necessary tests and studies. 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 include, if found, exposure to Agent Orange. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. Finally, readjudicate the appeal. If the benefit sought remains denied, issue 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. §§ 5109B, 7112 (2012). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs