Citation Nr: 20032020 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 19-36 262 DATE: May 6, 2020 ORDER New and material evidence having been received, the claim to reopen the previously denied claim of entitlement to service connection for white matter changes and dementia (claimed as Parkinson’s Disease), is granted. Entitlement to service connection for Parkinson's disease, to include as secondary to herbicide exposure, is granted. FINDINGS OF FACT 1. In an October 2015 rating decision, the Regional Office (RO) denied entitlement to service connection for white matter changes and dementia (claimed as Parkinson’s Disease); the Veteran did not appeal the decision and it became final. 2. The evidence received subsequent to the October 2015 rating decision relates to an unestablished fact necessary to substantiate the claim; is not cumulative of the evidence previously of record; and raises a reasonable possibility of substantiating the claim of entitlement to service connection for Parkinson’s disease. 3. Resolving reasonable doubt in favor of the Veteran, his Parkinson's disease was caused by herbicide exposure during active service. CONCLUSIONS OF LAW 1. The October 2015 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2019). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for white matter changes and dementia (claimed as Parkinson’s Disease). 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2019). 3. The criteria for entitlement to service connection for the Veteran’s Parkinson’s disease have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1961 to October 1964, to include service in the Republic of Vietnam. Sadly, the Veteran passed in July 2017, during the pendency of his appeal. The AOJ has recognized the Veteran’s surviving spouse on a substituted basis. 38 U.S.C. § 5121A; Breedlove v. Shinseki, 24 Vet. App. 7 (2010); March 2020 Appeal Notification Ltr. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) RO. The appellant timely filed a notice of disagreement (NOD) in January 2018, and the RO issued a statement of the case in October 2019. In November 2017, the appellant perfected her substantive appeal. The Veteran’s appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2019). 1. New and material evidence having been received, the claim to reopen the previously denied claim of entitlement to service connection for white matter changes and dementia (claimed as Parkinson’s Disease). By way of history, the Veteran submitted a claim of entitlement to service connection for Parkinson’s disease in February 2014. The RO in Augusta, Maine, denied the claim in August 2014 and October 2015, by reason that the Veteran did not have a currently diagnosed disability. The Veteran did not appeal, and new and material evidence was not received within one year of the October 2015 rating decision’s issuance. The decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Board finds that new and material evidence has been received subsequent to the October 2015 rating decision, which denied service connection for white matter changes and dementia (claimed as Parkinson’s Disease) because there was no evidence in the record of a current diagnosis. At the time of the rating decision, the evidence of record included a September 2015 VA examination; VAMC treatment records dated January 2012 through September 2015; VAMC treatment records dated May 1999 through August 2014; service treatment records (STRs); and the Veteran’s DD 214. Relevant evidence received more than one year since the October 2015 rating decision includes VAMC treatment records dated May 1999 through March 2017 and a January 2017 DBQ Parkinson’s Disease, which indicate a current diagnosis of Parkinson’s Disease. This evidence satisfies the definition of new and material evidence, as it raises a reasonable possibility of substantiating the claim. This evidence was not of record at the time of the prior final denial and provides evidence towards substantiating the Veteran’s claim. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s previously denied claim of service connection for depression. 2. Entitlement to service connection for Parkinson’s disease, to include as secondary to herbicide exposure. The appellant is seeking service connection for the Veteran’s Parkinson’s disease. Specifically, the appellant contends that the Veteran’s Parkinson’s disease was caused by his service in Vietnam and herbicide exposure. See May 2015 Claim. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it 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, then certain diseases, such as Parkinson’s disease, shall be service connected even though there is no record of such disease during service. For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the instant case, regarding the first element of service connection, whether the Veteran had a current diagnosis of Parkinson’s disease is at issue. The medical evidence of record contained various potential diagnoses, to include an unknown diagnosis with white matter changes associated with small vessel ischemic disease, dementia, Parkinson’s disease, Lewy body disease, and Alzheimer’s. Specifically, in a July 2014 VA examination, following review of an MRI the Veteran was diagnosed with age related atrophy, white matter changes and dementia, with an onset year of 2013. The white matter lesions were described to be extremely common in older individuals, and are thought to be due, in part, to small vessel ischemic disease. The examiner opined that to determine the etiology of the Veteran’s condition would be resorting to mere speculation. Subsequently, in a September 2015 VA opinion for a separate claim, the examiner noted that the Veteran was diagnosed with Alzheimer’s. In a December 2016 VA treatment record, the Veteran’s physician noted reviewing the November 2016 notes of an outside neurologist, Dr. L. The neurologist concluded the Veteran exhibited parkinsonian symptoms and that it was difficult to differentiate a diagnosis of Alzheimer’s with parkinsonian symptoms from advanced Parkinson’s or Lewy Body disease. It was also a moot point as to which diagnosis was the correct one as treatment would be unaffected by such a determination. See January 2017 Parkinson’s DBQ. In addition, in a January 2017 Parkinson’s DBQ, the examiner determined that the Veteran did have or had an unclear diagnosis of Parkinson’s. She explained that she had reviewed the Veteran’s medical history to include the November 2016 neurology consult and that in the expert opinion of the neurologist, the veteran’s medical condition is so advanced that his current diagnosis cannot be determined without resorting to mere speculation. In light of the above, and in weighing the entirety of the evidence of record, both the lay and medical, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran had a current diagnosis of Parkinson’s disease. As the evidence is in relative equipoise, reasonable doubt must be resolved in favor of the Veteran and the Board finds that the Veteran is currently diagnosed with Parkinson’s disease and the first element of service connection has been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Corning the second and third elements of service connection, as noted above, service connection due to exposure to herbicide agents is presumed when certain diseases, such as Parkinson’s disease, manifest to a compensable degree at any time after service under 38 C.F.R. § 3.309(e). Here, the Veteran’s military personnel records indicate that he served in Vietnam in 1963, thus he is presumed to have been exposed to Agent Orange. As the Veteran was exposed to herbicide agents while serving in Vietnam and had a diagnosis of Parkinson’s disease, presumptive service connection applies. (Continued on the next page)   Accordingly, entitlement to service connection for Parkinson’s disease, to include as secondary to herbicide exposure is warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, Associate 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.