Citation Nr: 20018941 Decision Date: 03/12/20 Archive Date: 03/11/20 DOCKET NO. 17-38 930 DATE: March 12, 2020 ORDER Entitlement to service connection for a right foot condition is denied. Entitlement to service connection for a left foot condition is denied. REMANDED Entitlement to service connection for Parkinson’s Disease is remanded. Entitlement to service connection for peripheral neuropathy, lower extremities, to include as secondary to Parkinson’s Disease, is remanded. Entitlement to service connection for memory loss, to include as secondary to Parkinson’s Disease, is remanded. Entitlement to service connection for a bowel/colon disorder, to include as secondary to Parkinson’s Disease, is remanded. Entitlement to service connection for muscle deterioration, to include as secondary to Parkinson’s Disease, is remanded. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression and anxiety, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a right foot disability at any time during or approximate to the pendency of the claim; and the Veteran has not claimed to have a right foot disability other than the separately claimed peripheral neuropathy and muscle deterioration. 2. The preponderance of the evidence of record is against finding that the Veteran has had a left foot disability at any time during or approximate to the pendency of the claim; and the Veteran has not claimed to have a left foot disability other than the separately claimed peripheral neuropathy and muscle deterioration. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot condition are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for a left foot condition are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1970 to February 1972. He had service in the Republic of Vietnam during the Vietnam Era from June 1971 to February 1972. The matters on appeal come before the Board from an April 2014 rating decision. The Veteran provided hearing testimony before the undersigned in October 2019. A transcript of that hearing is within the record before the Board. In July 2017, on the VA Form 9, in addition to requesting the Board hearing, the Veteran requested a local hearing before a Decision Review Officer (DRO) prior to the transfer of the case to the Board. This request was made in the narrative portion of the Veteran’s submission, which included several other arguments related to the claims. This narrative, including the DRO hearing request, was copied into several subsequent submissions. It does not appear that the Veteran provided hearing testimony before the DRO. The Court has held that an appellant’s due process rights are not violated and there is no prejudice if he is denied a hearing at the RO in violation of 38 C.F.R. § 3.103(c)(1), if he is subsequently offered an opportunity for a hearing before the Board and cannot demonstrate prejudice from the lack of RO hearing. See Bowen v. Shinseki, 25 Vet. App. 250 (2012). As noted above, the Veteran was afforded a hearing before the Board. Neither during the hearing, nor at any other time, has he suggested he has been prejudiced by the lack of the DRO hearing. Further, in January 2020, the Veteran’s representative confirmed receipt of a copy of the Board hearing transcript, as well as a copy of the claims file and merely requested that the Board wait until after January 31, 2020 to issue a decision. There was no further request for a DRO hearing. Accordingly, the Board finds no prejudice in proceeding with the adjudication of the claims. During the pendency of this appeal, the Veteran’s representative has suggested several times, including at the Board hearing, that service connection for diabetes mellitus due to in-service exposure to herbicides, is warranted. A review of the claims file, however, reveals that no formal claim for service connection for diabetes mellitus has been received. In fact, in July 2017, the RO sent a letter to the Veteran having noticed the diagnosis of diabetes and invited him to file a formal claim on the required standardized form. The RO identified the form needed and provided the information on the website to go in order to find the form. However, no diabetes claim has since been received. The matter of whether service connection for diabetes mellitus is warranted is, therefore, not within the Board’s jurisdiction. The Board reminds the Veteran that a claim can still be filed for this disorder with the appropriate form. The Veteran’s representative has also brought up the matter of whether a total disability rating is warranted based upon individual unemployability (TDIU) several times, including at the Board hearing. However, no formal TDIU claim has been filed. The Board recognizes that, under Rice v. Shinseki, 22 Vet. App. 447 (2009), a TDIU claim is part and parcel of an increased rating claim. In this case, however, there are no increased rating claims on appeal. Thus, without a formal claim and appeal for TDIU, this issue is also not within the Board’s jurisdiction. As a final preliminary matter, the Board observes that the Veteran has submitted evidence and argument related to establishing service connection for residuals of an in-service head injury. At the time of the Board hearing, the Veteran’s representative suggested the matter should be before the Board because it was on the Veteran’s original claim. The Veteran did indeed file a claim for a head injury in February 2013, which was denied by way of the April 2014 rating decision on appeal. However, the Veteran’s March 2015 notice of disagreement did not include the head injury claim. As the Veteran had not appealed the denial of service connection for a head injury it was not included in the subsequent statement of the case. As the matter was not appealed, this issue is not within the Board’s jurisdiction. Should the Veteran wish to file a claim to reopen whether service connection is warranted for a head injury, a standardized claim form must be filed. Service Connection – Right and Left Foot The Veteran has perfected the appeals as to whether service connection is warranted for a right foot condition or a left foot condition. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). As to the initial element for service connection, the presence of a current disability, the Veteran’s claims file does not include any treatment related to a left or right foot disability. The Veteran has not made any arguments related to these claims. Further, at the time of the October 2019 Board hearing, the Veteran confirmed that he was not claiming that a left or right foot disorder was present outside of the neuropathy and muscular issues, which are separately claimed and discussed below. Thus, the record does not show, and the Veteran has not claimed that a current right or left foot disability is present, apart from the separately claimed peripheral neuropathy and muscle deterioration. The Board recognizes that the other claims are being remanded, in part, for VA treatment records. However, as the Veteran confirmed at the hearing that he is not claiming to have right or left foot disorders other than peripheral neuropathy and muscle deterioration, the Board finds a remand of the right and left foot claims is not necessary. The Board, without consideration of the peripheral neuropathy or muscle deterioration claims discussed below, concludes that the Veteran does not have a current diagnosis of a right or left foot disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, the appeal with regard to the right and left foot condition claims is denied. REASONS FOR REMAND Additional evidentiary development is needed with regard to the Veteran’s claims for service connection for Parkinson’s Disease, peripheral neuropathy of the lower extremities, memory loss, a bowel/colon disorder, muscle deterioration and a psychiatric disorder. VA Treatment Records Evidence indicates that there may be outstanding relevant VA treatment records. The file before the Board includes VA treatment records from May 2013 to December 2015. These records include the initial evaluation in May 2013 to establish care at the Richmond VA Medical Center (VAMC). However, in May 2013, the Veteran’s wife submitted a statement in support of the Veteran’s claims. She reported that the Veteran initially sought care with VA after an October 2011 outreach clinic sponsored by the Hampton VA. There are no records from the Hampton VAMC within the claims file. Moreover, May 2015 records from the Richmond VAMC show an assessment of “tremor/ ?Parkinson’s” and a need to “check MRI brain and EEG as requested.” VA clinical records include results of a June 2015 brain MRI and a June 2016 EEG to assess tremors. The brain MRI report noted that there was no evidence of an acute intracranial abnormality and no acute problem identified, but did indicate the “Susciptibility artifact in the left basal ganglia may represent chronic calcification versus old microhemorrhage.” It is unknown to the Board whether any such finding would lead to a Parkinson’s diagnosis, particularly given the note in the same report that there was no acute problem identified. The EEG report was noted to be a normal study. There are no subsequent notations in the available VA records to suggest reevaluation of the Veteran’s tremors or confirmation of the Parkinson’s diangosis. The Board finds the records before May 2013 and since December 2015 should be obtained and associated with the claims file. A remand is required to allow VA to obtain them. Private Treatment Records The VA treatment records within the claims file suggest that the Veteran’s Parkinson’s Disease is followed by a private neurologist. There are, however, no clinical records from a private neurologist within the claims file, to include no diagnostic testing or other clinical confirmation of the Parkinson’s diagnosis. The record includes opinions from P.G.B., M.D., and C.N.B., M.D., but do not include clinical records from any private physicians. One of the reports from P.G.B., M.D. suggests that C.N.B., M.D. is the Veteran’s primary care physician. C.N.B. lists an office address in Bethesda, Maryland, while the Veteran resides in Virginia and receives VA care from the Richmond VAMC, which is a great distance from Bethesda, Maryland. Thus, it is unclear who the Veteran’s private treating neurologist is; however, because the record suggests a private clinician is treating the Veteran for Parkinson’s, the Board finds these records important to this claim given the lack of clarity found in the record relating to the Parkinson’s diagnosis. A remand is required to allow VA to obtain authorization and request these records. VA Examination – Parkinson’s Disease The Veteran served in the Republic of Vietnam during the Vietnam Era, thus he is presumed to have been exposed to herbicides during this service. 38 C.F.R. § 3.307(a)(6)(iii) (2019). Moreover, Parkinson’s Disease is presumed service-connected for herbicide exposed veterans. 38 C.F.R. § 3.309(e) (2019). Thus, it is imperative to know whether the Veteran has a confirmed diagnosis of this disease, especially given the clear clinical documentation of tremors. As noted above, the Veteran’s VA clinical records within the claims file suggest that the Veteran is treated for this disease outside VA. If the development of the VA and private records, discussed above, confirms the diagnosis, the RO should then readjudicate the claim. If, however, there is no confirmed diagnosis to explain the Veteran’s tremors, the Veteran should be afforded a VA examination with all appropriate diagnostic testing in order to confirm or rule out Parkinson’s Disease. 38 C.F.R. § 3.159(4) (2019). VA Examination – Psychiatric Disorder The Veteran has claimed service connection for PTSD. Initially, the Board notes that the clinical records also include positive depression screens and a private clinician’s suggestion of major depressive disorder and anxiety. The Board has, therefore, recharacterized the Veteran’s claim to be one for service connection for a psychiatric disorder. Moreover, VA has conceded an in-service stressor. In April 2013, an administrative decision shows that during the Veteran’s Vietnam service he was likley to have participated in activies and feared for his life while serving in an area of hostile military acivity. Thus, the question in this case is whether the Veteran has a psychiatric disorder that is causally connected to his in-service stressor. More information is needed to allow the Board to make a fully-informed decision. In May 2013, a VA examiner found that the Veteran did not meet the criteria for a current diagnosis of PTSD under the DSM-5. The examiner noted the Veteran’s alcoholism. The examiner did not note a depressed mood, but did note chronic sleep impairment and also noted that the Veteran needed to seek follow up mental health treatment. May 2013 VA clinical records note the Veteran had a negative PTSD screen, but did report nightmares, being constantly on guard, watchful or easily startled. An October 2013 VA clinical note shows a positive screen for depression. A June 2015 VA clinical note, however, indicates that the Veteran does not have any DSM-5 Diagnosis. A July 2016 private psychologist report includes a diagnostic impression listing dementia and major depression, but then concludes with a discussion of the etiology of PTSD. An undated medical report from P.G.B, M.D. received in July 2017 suggested that the Veteran had depression and frequent episodes of anxiety and moodiness. In December 2019, a private psychologist, M.B.W., suggested that the Veteran does have a PTSD diagnosis and no other mental health diagnosis and also no mental health treatment. This clinician, however, made no mention of the findings in the Veteran’s clinical records. Another psychologist’s report, also received in December 2019, suggested the Veteran has PTSD, Major Depressive Disorder, Dementia and Avoidant Personality Disorder Traits. It does not appear that any clinician has examined the Veteran, to include an assessment of his clinical history, and determined what, if any, diagnosed mental disorder is present, and, if a mental disorder has indeed been present at any time during the pendency of the claim, whether it is causally connected to his conceded in-service stressor. On remand, the Veteran should be an afforded a new VA examination with an assessment of the entire record during the pendency of this claim. 38 C.F.R. § 3.159(4) (2019). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran’s VA non-duplicative treatment records for the period from October 2011 to the present from the Hampton VAMC, Richmond VAMC and any other VA healthcare facility from which the Veteran has received treatment for the disabilities on appeal. [The claims file includes records from the Richmond VAMC dated from May 2013 to December 2015.] 2. Ask the Veteran to complete a VA Form 21-4142 for P.G.B., M.D., and C.N.B., M.D., and any other private clinician who treats his tremors and other symptoms he claims as Parkinson’s Disease. Make two requests for the authorized records from these clinicians, unless it is clear after the first request that a second request would be futile. Associate all records received or all negative responses with the claims file. 3. If the diagnosis of Parkinson’s Disease is not confirmed by the VA and private records obtained as a result of the action taken in remand directives 1 and 2, above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any disability manifested by tremors. Conduct all necessary testing. The examiner is asked to confirm or rule out Parkinson’s Disease. If Parkinson’s Disease is diagnosed, the examiner is also asked to assess whether the claimed peripheral neuropathy, memory loss, muscle deterioration, and bowel/colon symptoms are residuals of that condition. If these symptoms are residuals of Parkinson’s Disease, the examiner is asked if they are symptoms of the disease or separate diagnosable disorders that are at least as likely as not secondary to Parkinson’s Disease. The examination report should include reasons for any opinion expressed. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 4. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). The examiner should recognize that the Veteran’s in-service stressor has been conceded by VA. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran is diagnosed with a personality disorder and PTSD, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, to include a depressive disorder or anxiety disorder, as noted in the clinical records within the claims file, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, or disease. The examiner should discuss the variances in diagnoses within the VA clinical records and the various private clinician reports received. The examination report should include reasons for any opinion expressed. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. (Continued on the next page)   5. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.