Citation Nr: 21071067 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-10 660 DATE: November 29, 2021 ORDER The application to reopen the claim of service connection for Parkinson's disease is granted. Service connection for a cardiovascular (CV) disorder is denied. Service connection for diabetes mellitus type II (DM) is denied. REMANDED Service connection for Parkinson's disease. FINDINGS OF FACT 1. The Veteran served on active duty from July 1966 to July 1986; he has been 100 percent disabled since November 2020 plus in receipt of special monthly compensation (SMC). 2. In an unappealed November 2009 rating decision, the Regional Office (RO) denied service connection for Parkinson's disease; the evidence submitted since the November 2009 rating decision includes a private medical nexus opinion that addressed an unestablished element of the claim. 3. A CV disorder, diagnosed as atherosclerotic vascular disease and hypertension, was not shown in service, was not shown to a compensable degree within one year of service, symptoms were not continuous since service, and the Veteran is not presumed exposed to herbicide agents; a current CV disorder is not causally or etiologically related to service, and was not caused by or aggravated by a service-connected disability. 4. DM is not causally or etiologically related to service and was not caused by or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The November 2009 rating decision, which denied service connection for Parkinson's disease, is final. 38 U.S.C. § 7105 (2012). 2. The evidence received since the November 2009 rating decision is new and material; the claim for Parkinson's disease is reopened. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2010). 3. A CV disorder was not incurred in service, presumed to have been incurred in service, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2021). 4. DM was not incurred in service, presumed to have been incurred in service, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Additional VA medical records were added to the file following the last statement of the case (SOC) pertaining to the issues on appeal. The Veteran waived Regional Office initial review of the new VA medical records during his July 2021 Board hearing. New and Material Evidence to Reopen Claim for Parkinson's Disease Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The claim for Parkinson's disease was denied in November 2009 for lack of a medical nexus. There was evidence of in-service radiation exposure and a current disability. In the year following the rating decision, the Veteran did not appeal the decision, nor did he submit any correspondence that could be construed as a disagreement. Thus, the November 2009 rating decision became final. Evidence submitted since the November 2009 rating decision includes an August 2016 private medical nexus opinion, correspondences regarding onset, and both VA and private medical records. The medical nexus opinion specifically addresses a previously unestablished element of the claim and was associated with the file after the final denial in November 2009. Therefore, it is both new and material, and the application to reopen the claim is granted. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran served in the Republic of Vietnam between January 1962 and May 1975. Service in the Republic of Vietnam includes veterans who regularly and repeatedly operated, maintained, or served aboard aircraft known to have been used to spray herbicide agents during the Vietnam War Era. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). CV Disorder Turning to the evidence, a May 2016 private medical records show that the Veteran was diagnosed with atherosclerotic vascular disease. Additionally, August 2015 private medical records show a history of hypertension. As such, the first element of service connection is met. As to an in-service incurrence, a review of the service treatment records (STRs) fails to show any complaints of, treatment for, or a diagnosis of any CV disorder or any symptoms associated with a CV disorder. Further, he has not made any claims regarding an event during service that caused a CV disorder. As such, the second element is not met. To the extent that the Veteran asserts a medical nexus between service and current diagnosis, a review of the VA and private medical records show treatment for a CV disorder, but no medical professional has established a relationship between service and a CV disorder. As such, the medical evidence does not support service connection on a direct basis. As to service connection based on herbicide exposure, the Veteran has a disease (atherosclerotic vascular disease qualifies as ischemic heart disease) associated with exposure to herbicide agents under 38 C.F.R. § 3.309(e). He claims that he worked on Air Force bases where Agent Orange was sprayed and performed maintenance on aircraft that had returned from areas in which herbicide agents were used. He submitted a July 2021 statement that Roundup was used to kill excess growth around the base. His wife submitted an August 2019 that he worked on B-52 and KC-135 aircraft while in service. Although he served during the Vietnam era, the Veteran did not have foreign service in the Republic of Vietnam, in Thailand, or in South Korea. Additionally, 38 C.F.R. § 3.307(a)(6)(v) specifies that frequent service operating, maintaining, or serving on C-123 aircraft that sprayed herbicide agents qualifies for the presumption. The record fails to show that the Veteran's service involved repeated service with these types of aircraft. Similarly, the record fails to show on a fact found basis that he was frequently exposed to herbicide agents. Although he claims herbicide agent were used on the domestic bases he was stationed, there is no evidence that supports this that was submitted to the file. Additionally, he described Roundup being used against excess growth on the base, but this is not an herbicide agent as described by 38 C.F.R. §§ 3.307 and 3.309. Further, although he states he helped maintain planes that had previously been utilized in areas where herbicide agents had been sprayed, this is not akin to working on C-123 aircrafts that were actively spraying the chemicals themselves. Collectively, the evidence does not show that the Veteran was exposed to herbicide agents during active duty. As such, the evidence does not support service-connection on a presumptive basis for exposure to herbicide agents. As to service connection on a secondary basis, the Veteran contends that a CV disorder was caused by service-connected posttraumatic stress disorder (PTSD) specifically associated substance abuse. Turning to the evidence, the first element of secondary service connection is met as the Veteran has a current CV disorder. Next, he is service connected for PTSD and the second element of secondary service connection is also met. However, the third element a medical nexus is not met, as no medical professional has opined that the CV disorder was proximately due to or aggravated by service-connected PTSD. Specifically, the Veteran testified at the July 2021 Board hearing that PTSD caused his drinking which caused a CV disorder; however, August 2017 private medical records show he began drinking at 16-years old, prior to active duty. Additionally, a review of VA and private medical records do not show any medical professional has opined that PTSD caused or worsened his current CV disorders. April 2017 and January 2021 VA examinations evaluating PTSD do not list any CV symptoms as complications, and both show substance abuse in remission. As such, the medical evidence does not support a medical nexus between a current CV disorders and a service-connected disability. As to service connection on a presumptive basis, as noted, the STRs do not show a diagnosis of a chronic CV disease during service, and there is no evidence showing a that a chronic CV disease manifested to a compensable degree within a year of separation. Similarly, VA and private medical records fail to show continuous CV symptoms until his diagnosis in 2017 with atherosclerotic vascular disease. As to hypertension, he has not alleged nor does the evidence show that it manifested in the year following separation. He has not alleged continuous CV symptoms until this diagnosis. As such, the medical evidence does not support service connection on a presumptive basis. DM Turning to the evidence, private medical records beginning in 2015 discuss borderline DM and an August 2018 VA medical record confirmed a diagnosis of DM. As such, the first element of service connection is met. As to an in-service incurrence, a review of the STRs fails to show any complaints of, treatment for, or a diagnosis of DM or any symptoms associated with DM. Further, he has not claimed that DM started during service. As such, the second element is not met. To the extent that the Veteran asserts a medical nexus between service and current diagnosis, a review of the VA and private medical records show treatment for DM, but no medical professional has established a relationship between service and DM. As such, the medical evidence does not support service connection on a direct basis. As to service connection based on exposure to herbicides, while DM is a disease associated with herbicide agent exposure, he has not been presumed exposed to herbicides, nor does the evidence medical evidence support exposure on fact found basis. As such, the evidence does not support service connection for DM on a presumptive basis due to exposure to herbicide agents. As to service connection on a secondary basis, the Veteran contends that DM was caused by service-connected PTSD and associated drinking. Turning to the evidence, the first element of secondary service connection is met as the Veteran has a current diagnosis of DM. Next, he is service connected for PTSD and the second element of secondary service connection is also met. However, the third element a medical nexus is not met, as no medical professional has opined that DM was proximately due to or aggravated by service-connected PTSD. Although the exact date DM was diagnosed is unclear, the Veteran has claimed to have stopped drinking as early as 1986, and private medical records from 2015-2018 continually showed borderline DM. As such, the complaints of drinking and the onset of the current disability were not proximate, nor could the substance abuse that existed prior to DM then aggravate it. As for PTSD generally, a review of all VA and private medical records do not show any medical professional positing an etiological relationship, of either causation or aggravation, between PTSD and DM. As such, the medical evidence fails to support the third element of secondary service connection. As to both service connection claims, the Board has considered the Veteran's lay statements that that his disorders were caused by service or his service-connected PTSD. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer opinions as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records and clinical evidence obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. REASONS FOR REMAND Additional development is necessary prior to deciding the remaining issue on appeal. The Veteran has advanced several theories as to the etiology of his current diagnosis of Parkinson's. While he was not exposed to herbicide agents during service, he worked in proximity to radioactive materials, and further was in frequent contact with jet fuels and fumes. An August 2016 private medical opinion cited to specific chemicals in jet fuels and radiation contact experienced in service that "may well have contributed to the development" of Parkinson's disease. The opinion is insufficient alone to grant, as it does not explain whether these exposures were at least as likely as not the cause of Parkinson's. Further, a private medical record in June 2009 noted that Parkinson's disease could be caused by an environmental toxin. This opinion has no rationale and is speculative and thus is assigned lesser probative value, but is still suggestive of a medical nexus between Parkinson's and service. In addition, the Veteran explained in a November 2016 correspondence that his wife and daughter first noted a tremor in his left hand in 1982 but did not think much of it. His STRs show he was tested for tingling of his extremities during service. Finally, during his July 2021 Board hearing, he stated that that there were outstanding private medical records from the physician who diagnosed him with Parkinson's in 1999 and related to the tremor he had in service. Collectively, there is sufficient evidence of a current disability, in-service incurrence, and medical nexus such that the duty to assist requires the VA provide the Veteran with a medical examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, remand to attempt and obtain outstanding private medical records and for a VA examination is warranted. The matter is REMANDED for the following actions: 1. Obtain all outstanding VA medical records and associate them with the claims file. 2. Obtain and associate with the claims file any relevant outstanding private medical records, specifically from the physician who initially diagnosed the Veteran with Parkinson's disease in 1999. If those records are not available, a notation should be made in the file. 3. Refer the claims file to a clinician. The clinician is asked to provide the following opinions: Is Parkinson's disease at least a likely as not (a 50 percent or greater probability) due to active service? The examiner should specifically address his competent lay complaints of hand tremors during service and the June 2021 private medical opinion linking Parkinson's disease to either chemicals in jet fuel, or ionizing radiation exposure during service. 4. The RO should take any additional development it determines to be necessary, including conducting a radiation dose estimate, to decide the claim. 5. If the clinician determines that an examination is necessary in order to provide the requested opinion, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan Evans, 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.