Citation Nr: 21072660 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-52 661 DATE: December 3, 2021 ORDER Entitlement to service connection for Parkinson's disease, to include as due to herbicide agent exposure and Gulf War environmental exposure, is granted. Entitlement to service connection for an acquired psychiatric disorder, to include depression, as secondary to service-connected Parkinson's disease, is granted Entitlement to service connection for a cognitive disorder, to include as secondary to service-connected Parkinson's disease, is granted. REMANDED Entitlement to service connection for a sleep disorder, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The Veteran's Parkinson's disease is related to in-service exposure to various environmental hazards. 2. The Veteran's acquired psychiatric disability was caused or chronically worsened by service-connected disabilities. 3. The Veteran's cognitive disorder was caused or chronically worsened by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for Parkinson's disease have been met. 38 U.S.C. §§ 1110, 1131 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2020). 2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 3. The criteria for service connection for a cognitive disorder have been met. 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from April 1979 to June 1985. The Veteran also had active air service from June 1985 to December 1992. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the case for further development in April 2019. The case has since been returned to the Board for appellate review. SERVICE CONNECTION Parkinson's disease The Veteran asserts that his Parkinson's disease is related to herbicide agent exposure and hazardous environmental exposure from the Southwest Asia Theatre of Operations during the Persian Gulf War. Notably, the Veteran was stationed in the Persian Gulf from October 1990 to September 1991. He further reported that that while serving in the Persian Gulf War, that there was an open sewage pit directly behind his tent, that he was exposed to sand fleas, and that he was stationed at two airbases that were closed due to chemicals being detected in the water. The service treatment records (STRs) do not mention any neurological issues, However, the absence of medical treatment in the service treatment records is not necessarily decisive. 38 C.F.R. § 3.303(d). In May 2015, the Veteran provided a statement from a doctor who served in the military with him. The doctor opined that the Veteran's Parkinson's disease was related to exposures in the first Gulf War. In so finding, the doctor noted that the Veteran was exposed to dust, fumes, sewage, burning sewage, and dog collars to protect him from insects and fleas. The Veteran was afforded a November 2019 VA examination, which confirmed the diagnosis of Parkinson's disease. The examiner opined that it was less likely than not that the Veteran's Parkinson's disease had its onset in service. In so finding, the examiner noted that there was no evidence that the Veteran experienced the onset of Parkinson's disease in service. However, the examiner noted that medical literature concluded that there was insufficient or inadequate evidence to determine whether an association existed between deployment to the Gulf War and neurodegenerative conditions. Indeed, the examiner cited two studies when issuing his opinion. The first study concluded that although little was known about the long-term consequences of Gulf War Illnesses (GWI), findings from the study suggested that veterans with GWI show more symptoms as those seen in Parkinson's disease/Prodromal Parkinson's diseases when compared to healthy Gulf War Veterans. The second study concluded that there was insufficient/inadequate evidence to determine whether an association exists between deployment in the Gulf War and other neurodegenerative conditions. The Veteran clearly has Parkinson's disease, and his diagnosis satisfies the current disability requirement of his claim. The evidence also confirms the Veteran's service in Saudi Arabia after August 1990. Further, in his credible statements, he reported being exposed to environmental hazards while in the Persian Gulf. This evidence satisfies the in-service disease, injury, or event requirement. Thus, the question that remains is whether the Veteran's Parkinson's disease was caused by in-service exposure to environmental hazards. The May 2015 doctor provided a positive nexus opinion with respect to the Veteran's Parkinson's disease, and the November 2019 VA examiner provided a negative opinion. Upon considering both opinions, the Board assigns additional probative weight to the May 2015 doctor's opinion. Indeed, the May 2015 doctor relied on his own expertise, knowledge, and training when drafting his opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board recognizes that the November 2019 VA examiner did not adequately take into consideration the Veteran's in-service exposure to hazardous chemicals; did not consider a delayed onset of the disease; and did not discuss a separate and distinct etiology. Moreover, the examiner appeared to rely on medical literature that concluded that there was insufficient evidence to determine whether an association exists between Gulf War environmental exposures and neurodegenerative conditions. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for Parkinson's disease is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for Parkinson's is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Acquired psychiatric disability and a cognitive disorder The Veteran asserts that he is entitled to service connection for depression and a cognitive disorder, to include as secondary to his service-connected Parkinson's disease. As discussed above, the Board has determined that service connection for Parkinson's disease is warranted. Further, the record shows that the Veteran has a current diagnosis of depression and a neurocognitive disorder. VA treatment records reflect multiple notations that the Veteran has depression due to his Parkinson's disease. Further, the Veteran was afforded an October 2016 VA examination for his mental health disorders. The examiner noted diagnoses of depressive disorder and mild neurocognitive disorder related to Parkinson's disease. At that time, the examiner found that the Veteran's depression and neurocognitive disorder were due to Parkinson's disease. The Veteran was afforded another VA examination for his mental health disorders in November 2019. At that time, the examiner diagnosed the Veteran with persistent depressive disorder and mild neurocognitive disorder due to Parkinson's disease. The Veteran reported that his depression began in service and that it has continued since then. He reported that his symptoms have worsened significantly as his Parkinson's disease has worsened. The examiner noted that the Veteran's depressive disorder and neurocognitive disorders were two separate conditions, but both were related to his Parkinson's disease. Additionally, in a July 2020 addendum opinion the examiner noted that the initial source of the Veteran's depression was his disappointment with military performance and that his Parkinson's disease has resulted in a worsening of his depression. With regards to the Veteran's neurocognitive disorder, the examiner stated that the Veteran's treatment records were absent any mention of exposure to environmental hazards as a possible cause for his disability, but that they did cite Parkinson's disease as a cause for the Veteran's disability. Ultimately, the examiner stated that the Veteran's symptoms were associated with disappointed military performance, sleep issues, and Parkinson's disease. Therefore, the Board finds that the preponderance of the evidence weighs in favor of the claims and that entitlement to service connection for an acquired psychiatric disability and a cognitive disorder is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert, 1 Vet. App. 49 (1990). REASONS FOR REMAND Sleep Disorder The Board finds that additional development is warranted before the remaining claim on appeal is decided. Specifically, the record reflects that the Veteran's sleep disorder may have been caused or chronically worsened by his service-connected Parkinson's disease or acquired psychiatric disability. VA obtained a medical opinion regarding the nature and etiology of the Veteran's sleep disorder in November 2019. At that time, the examiner opined that it was less likely as not incurred in or caused by active service, to include as due to exposure to Gulf War environment hazards. Further, the examiner stated that the etiology of the Veteran's sleep disorder was unknown, and that the Veteran's significant sleep symptoms warranted a separate mental health diagnosis. However, the examiner stated that it was not possible to clearly attribute the sleep disorder to depressive disorder or Parkinson's disease. In July 2020 addendum opinion, the examiner stated that there was mention of the Veteran's sleep problems worsening as his depression worsened and that and that Parkinson's disease is known to commonly have an impact on sleep. As there is an indication that the Veteran's sleep disorder may have been aggravated by the Veteran's service-connected Parkinson's disease and depression, the Board finds that a new opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain a VA opinion by an examiner with sufficient expertise to determine the nature and etiology of any current sleep disorder. The examiner should review the claims file and indicate that review in the report. Any indicated studies should be performed. The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep disorder is caused or chronically worsened by the Veteran's service-connected Parkinson's disease and/or acquired psychiatric disability. The rationale for all opinions expressed must be provided. 2. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 3. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Sonja A. Mishalanie Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Cannaday, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED