Citation Nr: 18123780 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 13-11 768 DATE: August 3, 2018 ORDER Entitlement to service connection for Parkinson’s Disease as due to herbicide exposure for accrued purposes is granted. FINDING OF FACT The Veteran warranted a diagnosis of Parkinson’s Disease at the time of his death. CONCLUSION OF LAW The criteria for entitlement to service connection for Parkinson’s Disease as due to herbicide exposure, for accrued benefits purposes, have been met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 5101, 5107, 5121; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to June 1977. The Veteran died in April 2012, and the Appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Pension Management Center in St. Paul, Minnesota, which granted the Appellant’s claim for cause of the Veteran’s death and found that basic eligibility to Dependent’s Educational Assistance was established. The Appellant appealed the denial of service connection for IHD and Parkinson’s Disease. Jurisdiction was subsequently transferred to the RO in Oakland, California. In August 2016, the Appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The case was remanded by the Board in March 2017 for additional development and is now back before the Board for further appellate action. The RO granted the Appellant’s claim of entitlement to service connection for coronary artery disease in November 2017. As this is a full grant of the benefits sought, the Board no longer needs to adjudicate the issue. 1. Entitlement to service connection for Parkinson’s Disease as due to herbicide exposure Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). If a veteran was exposed to an herbicide agent during active military, naval, or air service, and develops certain diseases, to include Parkinson’s Disease, to a compensable degree any time after such service, the disease shall be service-connected even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. 38 C.F.R. §§ 3.307 (a)(6), 3.309 (e). Accrued benefits are periodic monetary benefits (other than insurance and servicemen’s indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In March 2012, the Veteran filed claims of entitlement to service connection for IHD and Parkinson’s. The Veteran died in April 2012. In May 2012, the Appellant filed a VA Form 21-534 Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits. In a September 2012 rating decision, the RO denied the service connection claim for Parkinson’s Disease on the basis that the Veteran did not have a diagnosis of PD prior to, or at the time of his death. Initially, the Board notes the Veteran’s service in Vietnam has been conceded by the RO. See November 2017 Rating Decision. As such, the Board must determine whether the Veteran had a PD diagnosis prior to, or at the time of his death in April 2012. The Veteran was treated at a private hospital and the records of his treatment have been obtained. A review of the private treatment records reveals the Veteran presented Parkinson-like symptoms and was diagnosed with Parkinsonism in 2009. However, the records also show various instances in which the treating specialist noted the Veteran had Parkinson’s disease and discussed treatment for that disease. During an outpatient consult in February 2008, the Veteran complained of Parkinson-like symptoms and the physician noted a slight tremor but noted it was not the tremor seen in Parkinson’s disease, and further stated there was no evidence of Parkinson’s disease at that time. A treatment note from May 2010 notes the Veteran “likely has mild Parkinsonism,” while a progress note from October 2009 attribute’s the Veteran’s trouble with walking to the Parkinsonism. Another October 2009 note discusses treatment for Parkinson’s disease, which is again noted in July 2010. The Board requested a specialist medical opinion in April 2018 to determine whether the medical evidence at the time of the Veteran’s death supported a diagnosis of Parkinson’s disease. In a May 2018 medical opinion, the Chief of Neurology at the Orlando VA Medical Center (VAMC), opined that the Veteran suffered from Parkinson’s disease. This opinion was based on a complete review of the record and on a sound rationale. Specifically, the specialist noted the reported symptoms, their progressive nature, and the absence of any of the exclusion criteria for a diagnosis of Parkinson’s disease despite the Veteran’s “extensive comorbidities.” The specialist also noted the symptoms were not induced by medication, and that the Veteran had multiple supportive criteria for a Parkinson’s disease diagnosis. The Board finds the specialist medical opinion is adequate and, therefore, highly probative. For the above-discussed reasons, the Board finds the Veteran suffered from Parkinson’s disease at the time of his death. As Parkinson’s disease is one of the illnesses listed in 38 C.F.R. § 3.309 (e), the Board finds the Appellant has met the elements of her claim as presumptive service connection for Parkinson’s disease is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel