Citation Nr: 21005000 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 19-31 355 DATE: January 28, 2021 ORDER New and material evidence has been received to substantiate the claim for service connection for Parkinson’s disease, to include right hand tremor and as due to herbicide exposure, and the petition to reopen is granted. REMANDED Entitlement to service connection for Parkinson’s disease, to include a right hand tremor, and as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. A May 2015 rating decision denied the Veteran’s claim of entitlement to service connection for Parkinson’s disease, to include right hand tremor and as due to herbicide exposure. The Veteran was notified of his appellate rights but did not submit new and material evidence within one year nor complete an appeal of the rating decision. 2. Evidence received since the May 2015 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for Parkinson’s disease, to include right hand tremor and as due to herbicide exposure, and raises a reasonable possibility of substantiating the Veteran’s claim of service connection. CONCLUSIONS OF LAW 1. The May 2015 rating decision that denied entitlement to service connection for Parkinson’s disease, to include right hand tremor and as due to herbicide exposure, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2019). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for Parkinson’s disease, to include right hand tremor and as due to herbicide exposure. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1966 to March 1968. According to the Veteran’s October 2019 VA Form 9, Appeal to Board of Veterans’ Appeals, he requested a Board videoconference hearing. However, the Veteran, through his representative, withdrew his hearing request in a September 2020 communication. There are no additional hearing requests in the record; therefore, the Board deems his request for a hearing withdrawn. See 38 C.F.R. § 20.704 (e) (2019). In the same September 2020 communication, the Veteran’s representative requested a 90 day extension to submit additional evidence. A 90 day extension was granted in November 2020 and additional evidence was later received. New and material evidence has been received to substantiate the claim for service connection for Parkinson's disease to include right hand tremor and as due to herbicide exposure and the petition to reopen Initially, the Board notes that by the December 2017 rating decision, the Regional Office (RO) denied reopening the Veteran’s claim of entitlement to service connection for Parkinson’s disease, to include right hand tremor and as due to herbicide exposure. On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). 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. 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. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence presented since the May 2015 rating decision includes VA examinations, VA treatment records, and private treatment records. This evidence is clearly “new” because it postdates the May 2015 decision and is also “material” because it reveals treatment for neurological symptoms, it relates to previously unestablished elements of service connection, and raises a reasonable possibility of substantiating the underlying issue. Therefore, this evidence constitutes new and material evidence. See Shade, 24 Vet. App. at 118. Consequently, the Veteran’s claim of entitlement to service connection for Parkinson’s disease, to include right hand tremor and as due to herbicide exposure, is reopened. REASONS FOR REMAND The Veteran is seeking service connection for Parkinson’s disease, to include a right hand tremor, contending that his condition was caused by his exposure to herbicide agents while he was serving the in the Republic of Vietnam. An April 2015 VA examination determined that the Veteran does not have a current diagnosis of Parkinson’s disease. The examiner found that the Veteran had a mild tremor of his right hand, but the examiner noted that there were absolutely no other symptoms of Parkinson’s disease. The examiner opined that it was more likely than not that his right hand tremor was a benign essential tremor of no consequence, without any other findings to suggest Parkinson’s disease. Likewise, an August 2018 VA examination also found that the Veteran did not have a current diagnosis of Parkinson’s disease. Although the Veteran reported that he was being treated outside of VA for Parkinson’s disease, these private treatment records were not of record or available for review at the time of the examination. Therefore, the examiner concluded that he was unable to confirm a definite diagnosis of Parkinson’s disease. In support of his claim, the Veteran submitted private treatment records. However, these records also did not confirm that the Veteran has a current diagnosis of Parkinson’s disease. Rather, in a private treatment record from February 2018, the examiner noted that the Veteran reported hand tremors, which the examiner characterized as parkinsonian; however, a diagnosis of Parkinson’s disease was not rendered at that time. Additional private treatment records from October 2019 indicate that the Veteran had been receiving treatment for tremors and that he was undergoing a neurological evaluation for cause, but once again, there was no diagnosis of Parkinson’s disease indicated. To afford the Veteran the broadest possible scope for his claim, the issue has been recharacterized accordingly to that of entitlement to service connection for a right hand tremor, to include as due to exposure to herbicides. Clemons v. Shinseki, 23 Vet. App. 1,6 (2009). As discussed above, the Veteran was assessed as having an essential benign tremor by the April 2015 VA examiner and as having resting tremors in the September 2019 private treatment records. A review of VA and private examination reports indicates that the Veteran’s symptoms of a tremor in the right hand have not been fully explained by the examiners, aside from the determination that the Veteran does not have Parkinson’s disease. More specifically, no examiner has opined as to whether or not the Veteran’s right hand tremor is diagnosable by itself, and, if so, whether or not it is attributable to the Veteran’s active military service, to include as due to exposure to herbicides. Equally, the Veteran’s right hand tremor has been characterized as being a parkinsonian tremor, without any adequate discussion as to being distinct from Parkinson’s disease. Therefore, an addendum opinion is required to ascertain any diagnosis for a disability productive of the tremors in the Veteran’s right hand and its connection to the Veteran’s active military service. If no definitive diagnosis is ascertainable, then an opinion on whether this symptom causes functional impairment of earning capacity must be provided. See, e.g., Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (recognizing pain as a disability if there is objective evidence of functional impairment of earning capacity). The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s right hand disability, manifested by symptoms of tremors right hand. The claims file should be sent to and reviewed by the VA examiner. If the examiner determines that an examination is necessary, but cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the Agency of Original Jurisdiction (AOJ) should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran’s claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disabilities. The examiner must opine whether the Veteran’s right hand tremors warrants a separate diagnosis. Additionally, the examiner is requested to discuss the difference between a parkinsonian tremor, parkinsonism, and a diagnosis of Parkinson’s disease. If no separate diagnosis is warranted, the examiner must opine if the right hand tremors cause functional impairment of earning capacity. If a separate diagnosis is made for right hand tremor or this symptom causes functional impairment to earning capacity, the examiner must opine if the diagnosis or condition of right hand tremor is at least as likely as not (50 percent or greater probability) related to service, to include his presumed herbicide exposure in service. In rendering this opinion, the examiner must consider the Veteran’s statements regarding the onset of his condition and continuity of symptomatology and may not disregard those statements merely because there was no treatment. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is to find against it. (Continued on the next page)   The rationale for all opinions expressed must be provided and the examiner must clearly articulate the reasons for his or her conclusions. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.