Citation Nr: A21017474 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 190510-20916 DATE: October 28, 2021 ORDER Entitlement to service connection for a disability manifested by memory loss is denied. Entitlement to service connection for tremors is denied. REMANDED Entitlement to service connection for heart condition is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record does not establish the Veteran has a disability manifested by memory loss that is at least as likely as not related to an in-service injury, event, or disease, to include as due to Agent Orange exposure. 2. The preponderance of the evidence of record does not establish the Veteran has tremors that are at least as likely as not related to an in-service injury, event, or disease, to include as due to Agent Orange exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a disability manifested by memory loss have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for tremors have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to June 1972. Rating decisions were issued under the legacy system in January 2018 (tremors) and July 2018 (memory loss and heart) and the Veteran submitted a timely notice of disagreement (NOD) to both rating decisions. In March 2019, the Agency of Original Jurisdiction (AOJ) issued Statements of the Case (SOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a timely VA Form 10182, Decision Review Request: Board Appeal (NOD) identifying the March 2019 SOCs; therefore, the March 2019 SOCs are the decisions on appeal. In the VA Form 10182, Decision Review Request: Board Appeal (NOD), the Veteran elected the Hearing option. The Veteran testified before the undersigned VLJ in May 2021; a transcript in the claims file. Therefore, the Board may only consider the evidence of record at the time of the March 2019 AOJ decisions on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Board notes the Veteran seeks service connection for a heart condition. See April 2018 VA Form 21-526. The Board has expanded the claim of service connection for a heart condition to include hypertension. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of entitlement to service connection for tremors and a disability manifested by memory loss, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As the Board is remanding the claim of entitlement to service connection for a heart condition for further development, this additional evidence will be considered by the RO in the adjudication of that claim. Service Connection Generally, service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be (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). A veteran who served in Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents such as Agent Orange during such service, absent affirmative evidence to the contrary. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that if a veteran was exposed to certain herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Entitlement to service connection for a disability manifested by memory loss. The Veteran seeks service connection for a disability manifested by memory loss. See April 2018 VA Form 21-526. The Veteran's representative argued that the Veteran's memory loss, diagnosed as dementia, is possibly related to Parkinsonism disorder and/or related to Agent Orange exposure in the Republic of Vietnam. See May 2021 Hearing Transcript. As noted, the Veteran's military personnel records demonstrate the Veteran had service in the Republic of Vietnam; therefore, herbicide agent exposure is presumed. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). As an initial matter, service connection for certain chronic diseases including paralysis agitans (i.e., Parkinson's disease) and Parkinsonism, may be established on a presumptive basis by showing that such disease manifested to a degree of 10 percent or more at any time after service, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(6), 3.309(a). As noted, the Veteran's representative asserted that the Veteran's memory loss may be related to Parkinson's or Parkinsonism disorder. However, the evidence of record does not demonstrate the Veteran has a current diagnosis for Parkinson's or Parkinsonism disorder at any time during the appeal period. For example, a March 2018 private neurological clinic record notes an assessment for memory loss. See March 2018 private treatment records. The private physician noted "suspect senile and possibly vascular" and notes further evaluation for cerebrovascular disease and vascular dementia. Id. The Veteran provided a January 2020 private neuropsychology evaluation noting the Veteran has mild cognitive impairment and memory lapses that are more consistent with vascular dementia. See January 2020 private treatment records. Therefore, the Board finds the evidence of record fails to demonstrate the Veteran has a current diagnosis for paralysis agitans, i.e., Parkinson's disease or Parkinsonism, and presumptive service connection is not warranted. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(6), 3.309(a). However, the presumptive regulations, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 35 F. 3d 1039, 1043 (Fed. Cir. 1994). Therefore, there must be evidence to support a finding of direct service connection, i.e., evidence showing a current diagnosis of a disability manifested by memory loss that was incurred during or as a result of military service. As noted, the evidence of record indicates the Veteran was diagnosed with memory loss and test results are more consistent with vascular dementia. See March 2018 and January 2020 private treatment records. A such, the Board finds that the first element of service connection has been met. See Shedden, 381 F.3d at 1167. As noted, the Veteran is presumed to be exposed to herbicide agents during service. As such, the Board finds that the second element of service connection has been met. See Shedden, 381 F.3d at 1167. As to the third element of service connection, the Veteran's representative asserts the AOJ committed a pre-decisional duty to assist error by failing to afford the Veteran with a VA examination to see if the Veteran's memory loss was related to his in-service herbicide exposure. See May 2021 Hearing Transcript. Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). VA must provide a medical examination or obtain a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds that remand for a pre-decisional duty to assist error is not warranted, including remand for a VA examination. In that regard, the Veteran's service treatment records are silent for any complaints, treatment, or diagnoses of a disability manifested by memory loss. Additionally, the Veteran, nor his representative, asserts that his memory problems began or had its onset during his active duty service. For example, the Veteran and his sons provided testimony that the Veteran's memory problems began around 2003/2004. See May 2021 Hearing Transcript. Prior to the rating decision on appeal, there was no evidence of record indicating the Veteran's memory loss may be associated with his active duty service. For example, as noted, the Veteran's private treatment records demonstrate the Veteran's report of memory problems; however, there is no indication the Veteran's memory problems are related to his active duty service. See March 2018 private treatment records. Moreover, there is no other evidence indicating an association between his memory loss and his active duty service, to include in-service herbicide agent exposure. The only evidence in support of the Veteran's claim prior to the rating decision on appeal is his own statement, through his representative, alleging service connection is warranted. See August 2018 NOD. Mere conclusory or generalized lay assertions alleging a nexus between a current disability and service does not meet the standard to warrant a VA examination. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). To the extent the Veteran asserts he has a disability manifested by memory loss related to his service, the Board notes that he has not been shown to have the medical training necessary to opine as to the nature and etiology of any such disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board is prohibited from remanding an AMA appeal unless the AOJ committed a pre-decisional duty to assist error. At no point did the Veteran or his representative identify any evidence prior to the March 2019 rating decision on appeal that indicated an association of the Veteran's memory loss and his active duty service. Therefore, the Board has found no pre-decisional duty to assist error and remand is not warranted. The Veteran may always submit such records to the AOJ as part of a Supplemental Claim on this matter. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim to entitlement to service connection for a disability manifested by memory loss. As the preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to service connection for tremors. The Veteran seeks service connection for tremors. See December 2017 VA Form 21-526. The Veteran's representative argued that the Veteran's tremors are possibly related to Parkinsonism disorder and/or related to Agent Orange exposure in the Republic of Vietnam. See May 2021 Hearing Transcript. As noted, the Veteran's military personnel records demonstrate the Veteran had service in the Republic of Vietnam; therefore, herbicide agent exposure is presumed. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). As an initial matter, the Board notes the AOJ initially denied the Veteran's claim in a July 2014 rating decision. The Veteran did not timely file a NOD following issuance of the July 2014 rating decision. In December 2017 the Veteran filed a new claim to readjudicate the claim of entitlement to service connection for tremors. The AOJ issued a January 2018 rating decision denying the claim based on a finding that there was no new and material evidence submitted to readjudicate the claim. The Veteran filed a timely NOD and the AOJ addressed the merits on appeal in a March 2019 SOC. Under the AMA, VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). The Board finds that the AOJ has made an implied favorable finding that new and relevant evidence has been received sufficient to warrant readjudication of the prior final decision. The Board is bound by this favorable finding and will not further address the matter of whether new and relevant evidence has been submitted. 38 C.F.R. § 3.104(c). Service connection for certain chronic diseases including paralysis agitans (i.e., Parkinson's disease) and Parkinsonism, may be established on a presumptive basis by showing that such disease manifested to a degree of 10 percent or more at any time after service, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(6), 3.309(a). As noted, the Veteran's representative asserted that the Veteran's tremors may be related to Parkinson's or Parkinsonism disorder. However, as noted previously, the evidence of record does not demonstrate the Veteran has a current diagnosis for Parkinson's or Parkinsonism disorder at any time during the appeal period. For example, the Veteran's private treatment records note an assessment for essential/other forms tremors and benign essential tremor. See August 2012 and March 2018 private treatment records. The private physician did not indicate the Veteran had a diagnosis for Parkinson's disease. The Veteran submitted an article discussing Parkinsonism and related symptoms that include tremors. However, the article is not specific to the Veteran's specific case and does not demonstrate the Veteran is diagnosed with Parkinson's disease or Parkinsonism disorder. Therefore, the Board finds the evidence of record fails to demonstrate the Veteran has a current diagnosis for paralysis agitans, i.e., Parkinson's disease or Parkinsonism, and presumptive service connection is not warranted. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(6), 3.309(a). However, the presumptive regulations, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee, 35 F. 3d at 1043. Therefore, there must be evidence to support a finding of direct service connection, i.e., evidence showing a current diagnosis of a tremor that was incurred during or as a result of military service. As noted, the evidence of record indicates the Veteran was diagnosed with tremors. See August 2012 and March 2018 private treatment records. A such, the Board finds that the first element of service connection has been met. See Shedden, 381 F.3d at 1167. As noted, the Veteran is presumed to be exposed to herbicide agents during service. As such, the Board finds that the second element of service connection has been met. See Shedden, 381 F.3d at 1167. As to the third element of service connection, the Veteran's representative asserts the AOJ committed a pre-decisional duty to assist error by failing to afford the Veteran with a VA examination to see if the Veteran's tremors were related to his in-service herbicide exposure. See May 2021 Hearing Transcript. Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). VA must provide a medical examination or obtain a medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing that certain diseases manifested during an applicable presumptive period for which the veteran qualifies; (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds that remand for a pre-decisional duty to assist error is not warranted, to include remand for a VA examination. In that regard, the Veteran's service treatment records are silent for any complaints, treatment, or diagnoses of symptoms related to the Veteran's current diagnosis of tremors. Additionally, the Veteran, nor his representative, asserts that his tremors began or had its onset during his active duty service. For example, the Veteran testified that he noticed his tremors began around 2013/2014. See May 2021 Hearing Transcript. Prior to the rating decision on appeal, there was no evidence of record indicating the Veteran's tremors may be associated with his active duty service. For example, the Veteran's private treatment records demonstrates the Veteran's tremors were "most likely BET but he does have history of cervical spine fusion and also with brisk reflexes so raises concern for a myelopathy as a possible cause." See March 2018 private treatment records. However, there is no indication the Veteran's tremors are related to his active duty service. Id. Moreover, there is no other evidence indicating an association between his tremors and his active duty service, to include in-service herbicide agent exposure. The only evidence in support of the Veteran's claim prior to the rating decision on appeal is his own statement, through his representative, alleging service connection is warranted. See April 2018 NOD. Mere conclusory or generalized lay assertions alleging a nexus between a current disability and service does not meet the standard to warrant a VA examination. See Waters, 601 F.3d at 1278-79. To the extent the Veteran asserts he has tremors related to his service, the Board notes that he has not been shown to have the medical training necessary to opine as to the nature and etiology of any such disability. See Kahana, 24 Vet. App. at 435; see also Jandreau, 492 F.3d at 1377. The Board is prohibited from remanding an AMA appeal unless the AOJ committed a pre-decisional duty to assist error. At no point did the Veteran or his representative identify any evidence prior to the March 2019 rating decision on appeal that indicated an association of the Veteran's tremors and his active duty service. Therefore, the Board has found no pre-decisional duty to assist error and remand is not warranted. The Veteran may always submit such records to the AOJ as part of a Supplemental Claim on this matter. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim to entitlement to service connection for tremors. As the preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert, 1 Vet. App. at 53. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. REASONS FOR REMAND Entitlement to service connection for heart condition is remanded. The Veteran seeks service connection for a heart condition. See April 2018 VA Form 21-526. Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a). The Board finds that remand for a pre-decision duty to assist error is required. Private treatment records associated with the claims file at the time of the rating decision on appeal demonstrate the Veteran was diagnosed with a history of hypertension since August 2012. See April 2016 private treatment records. The Veteran submitted a May 2021 private treatment record that demonstrates the Veteran has also been diagnosed with hypertension and ventricular tachycardia. Hypertension is not included on the list of diseases presumed to have been incurred in service in Vietnam. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the Veteran may still be entitled to service connection on a direct basis if the evidence establishes that hypertension is related to herbicide agent exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); 38 C.F.R. § 3.303. The court has specifically held that the provisions of Combee are applicable in cases involving Agent Orange exposure. McCartt v. West, 12 Vet. App. 164, 167 (1999). The National Academies of Sciences, Engineering and Medicine recently opined that there is sufficient evidence of an association between exposure to herbicide agents used during the Vietnam War and hypertension. See The National Academies of Sciences, Engineering, and Medicine, Committee Review the Health Effects in Vietnam Veterans Exposure to Herbicides (Eleventh Biennial Update) (2018), available at https://www.nap.edu/catalog/25137/veterans-and-agent-orange-update-11-2018. Hypertension was moved to the category of "sufficient: evidence of an association from its previous classification in the "limited or suggestive: category. Id. The research showed that there is enough epidemiologic evidence to conclude that there is a positive association between herbicide agent exposure and hypertension in Vietnam veterans. Id. This new research demonstrates a causal relationship between the Veteran's hypertension and his exposure to herbicides. While this finding does not mandate the grant of service connection, as hypertension is not an Agent Orange presumptive disease at this time, the Update 11 (2018) findings should nevertheless be considered by a medical professional as they pertain to the specifics of the Veteran's case. See McLendon, 20 Vet. App. at 83-86. Therefore, the Board finds remand is necessary to correct a pre-decisional duty to assist error and afford the Veteran with a VA examination to determine whether the Veteran's heart condition is at least as likely as not related to his military service, to include herbicide agent exposure. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's heart condition. A copy of this Remand and the claims file should be provided to the examiner for review. The examiner should address whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran has a heart condition that is related to an in-service injury, event, or disease, to include his presumed herbicide agent exposure. A complete rationale must be provided for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.