Citation Nr: 21000117 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-03 217 DATE: January 4, 2021 ORDER Service connection for a lumbar spine disability is granted. REMANDED Entitlement to service connection for Parkinson’s disease, to include as a result of in-service exposure to herbicide agents, is remanded. Entitlement to service connection for a disability manifested by tremors of the head and hands, to include as a result of in-service exposure to herbicide agents or as secondary to a service-connected lumbar spine disability, is remanded. Service connection for right lower extremity peripheral neuropathy, to include as a result of in-service exposure to herbicide agents or as secondary to a service-connected lumbar spine disability, is remanded. Service connection for left lower extremity peripheral neuropathy, to include as a result of in-service exposure to herbicide agents or as secondary to a service-connected lumbar spine disability, is remanded. FINDING OF FACT Affording the Veteran the benefit of the doubt, his lumbar spine disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1963 to November 1967. In October 2019, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). Service Connection for a Lumbar Spine Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, service connection can also be established through application of a statutory presumption for chronic diseases, like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is not manifested to a compensable degree within a year of separation of service, then, generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303 (b). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Veteran seeks service connection for a lumbar spine disability. He was afforded a VA thoracolumbar spine examination in June 2015, which provided current spine diagnoses, including arthritis. Also, a September 2019 letter from his private spine and pain provider stated that the Veteran has spinal stenosis. As such, the current disability prong of this claim for service connection has been met. Further, the Veteran testified before the Board of Veterans’ Appeals (Board) in October 2019 that his back pain began in service after he lifted 600-gallon tanks while performing his job duties as an aircraft mechanic. His service treatment records show that he complained of low back pain in service. Moreover, the Veteran submitted a September 2019 nexus opinion from his private spine and pain provider who found that it was more likely than not that the Veteran’s chronic back pain originated with his in-service job as a jet mechanic. The Veteran has alleged that the pain has continued since that time. The Board acknowledges that the June 2015 VA thoracolumbar examiner opined against service connection for the Veteran’s lumbar spine condition. While the Board cannot ignore or disregard the VA examiner’s medical conclusions [Willis v. Derwinski, 1 Vet. App. 66 (1991)], the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the negative nexus opinion was rendered based on the examiner’s inability to link the Veteran’s low back condition to his service without resorting to speculation. His rationale focused on the lack of medical records documenting back pain regularly post-service. As such, the examiner ignored the Veteran’s competent lay statements regarding the history of his lower back symptoms and their onset. Thus, as the examiner did not consider the Veteran’s probative factual assertions, the Board affords very little probative weight to this opinion. In this case, the Veteran has sufficiently asserted experiencing symptoms of his back condition since active service. Further, the Board has no reason to question the credibility of the Veteran’s statements. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As such, his statements are probative competent evidence regarding the onset of his condition, and the evidence supporting service connection is at least in equipoise. Affording him the benefit of the doubt, service connection is warranted for his lumbar spine disability, as it is a condition for which he has been experiencing symptoms since active service. REASONS FOR REMAND Entitlement to service connection for Parkinson’s disease, to include as a result of in-service exposure to herbicide agents Entitlement to service connection for a disability manifested by tremors of the head and hands, to include as a result of in-service exposure to herbicide agents or as secondary to a service-connected lumbar spine disability Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as a result of in-service exposure to herbicide agents or as secondary to a service-connected lumbar spine disability The Veteran testified in October 2019 that he had continued to be treated for these conditions with a private provider. There is also uncertainty in the record as to whether the Veteran has been diagnosed with Parkinson’s disease or a disability manifested by tremors of the head and hands. His Board testimony indicated that his recent private medical records would contain more information about the status of these conditions. Currently, treatment records from his private providers associated with the claims file are dated no later than 2016. As the updated records could contain information which could help substantiate the Veteran’s claims, they must be obtained, as well as updated VA treatment records, which were also last associated with the claims file in 2016. Further, the law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents. The law also provides a presumption of exposure to such agents for veterans who served in the Republic of Vietnam between January 1962 and May 1975, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). In these circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), which includes Parkinson’s disease if manifested to a compensable degree at any time after active service, and early onset peripheral neuropathy if manifested to a degree of 10 percent or more within g a year after the Veteran’s last in-service herbicide agent exposure,. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). VA has also determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases during the Vietnam Era. If a veteran served in the U.S. Air Force during the Vietnam Era at one of the specified Royal Thai Air Force Bases (RTAFBs), including Ubon, in a capacity that placed him near the air base perimeter, as shown by the evidence of record, to include daily work duties, performance evaluation reports or other credible evidence, then herbicide exposure may be conceded. Here, the record reflects that the Veteran served in the U.S. Air Force as an aircraft mechanic at Ubon RTAFB, Thailand, in 1966 and 1967. He testified before the Board about how he performed duties near the air base perimeter. The Board has no reason to doubt the credibility of these statements. The Veteran is competent to report the physical locations where he performed his duties during his service at Ubon RTAFB. He has presented credible evidence that he routinely worked near the base perimeter. Resolving reasonable doubt in his favor, the Board finds that his active service duties placed him near the perimeter of Ubon RTAFB in Thailand during the Vietnam Era. He is, thus, presumed to have been exposed to herbicide agents such as Agent Orange in service. Having conceded in-service herbicide exposure for the Veteran, the in-service elements of his claims have now been met. However, further development is needed as to other aspects of his claims before the Board can decide them. As to the peripheral neuropathy of the Veteran’s lower extremities, the Board notes that the record is currently unclear as to whether he has peripheral neuropathy of both lower extremities, as it was only noted in the May 2016 VA thoracolumbar spine examination as being present in the right side. Private treatment records, however, have suggested bilateral peripheral neuropathy. Further, the Veteran testified before the Board that his neuropathy condition is genetic, so the etiology is unclear, as well (as lumbar spine conditions can often lead to peripheral neuropathy). Thus, a VA examination is needed to determine the nature and etiology of the peripheral neuropathy of the Veteran’s lower extremities before the Board can decide this claim. Further, it is not currently clear if the Veteran’s tremor condition is one for which a presumptive service connection is warranted. A VA examination to determine the nature and etiology of this disability should also be obtained. Accordingly, these matters are REMANDED for the following action: 1. Obtain VA treatment records from December 2016 through present. 2. Ask the Veteran to complete a new VA Form 21-4142 for all private providers who have treated him for the conditions remaining on appeal (as his prior authorization form is no longer valid). Make two requests for all previously unobtained authorized records from 2016 through the present, unless it is clear after the first request that a second request would be futile. 3. After obtaining all updated private and VA treatment records for the Veteran, schedule him for a VA neurological examination to determine the nature and etiology of his claimed bilateral lower extremity peripheral neuropathy and any disability manifested by tremors of the head and hands. The examiner should review the entire claims file, conduct all necessary tests and studies, and address the following: (a.) Clearly indicate whether the Veteran has, or has had at any time during the appeal period (from November 2015 to the present), right and/or left leg neuropathy and/or a diagnosed disability manifested by tremors of the head and hands. (b.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed neurological disability is related to any incident of active service, to include as a result of his presumed exposure to herbicide agents therein? (c.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed neurological disability was caused by the Veteran’s service-connected lumbar spine disability? (d.) Is it at least as likely as not (i.e., 50 percent probability or greater) that any such diagnosed neurological disability was aggravated (i.e., made worse) by the Veteran’s service-connected lumbar spine disability? If so, the examiner should identify the degree of impairment that is due to such aggravation. (e.) With regard to any diagnosed lower extremity peripheral neuropathy in particular, is it as least as likely as not that the neuropathy manifested to a degree of at least 10 percent within a year of his last exposure to herbicide agents in late 1967? The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, 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.