Citation Nr: 21073127 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-32 651 DATE: December 7, 2021 ORDER The application to reopen the claim of entitlement to service connection for Parkinson's disease is granted. Entitlement to service connection for Parkinson's disease, to include as due to herbicides exposure and/or chemical exposure, is denied. FINDINGS OF FACT 1. In an unappealed January 2014 decision, the RO denied service connection for Parkinson's disease and new and material evidence was not received within the one-year appeal period. 2. The evidence received since the prior final September 2015 RO decision relates to an unestablished fact necessary to substantiate the claim of service connection for Parkinson's disease and raises a reasonable possibility of substantiating the claim. 3. The Veteran's Parkinson's disease is not causally or etiologically related to any disease, injury, or incident in service, to include herbicides exposure and/or chemical exposure. CONCLUSIONS OF LAW 1. The January 2014 RO decision denying service connection for Parkinson's disease is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. As additional evidence received since the prior final September 2015 RO denial is new and material, the criteria for reopening the claim for service connection for Parkinson's disease are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for Parkinson's disease have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from May 1971 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In that decision, the RO, inter alia, granted the Veteran's application to reopen his previously denied claim for entitlement to service connection for Parkinson's disease, but denied the claim on the merits. In August 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Petition to reopen the previously denied claim for Parkinson's disease The Veteran's claim for service connection for Parkinson's disease was previously considered and denied in a January 2014 rating decision, because the available service treatment records (STRs) did not contain any complaints, treatment, or diagnosis of this condition and the Veteran was not found to have served in the Republic of Vietnam, and thus not entitled to presumptive service connection based on herbicides exposure. Although notified of the January 2014 denial in a respective letter dated that same month, the Veteran did not initiate an appeal with respect to the claims. See 38 C.F.R. §§ 20.200, 20.201. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial of the claim, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Therefore, the January 2014 denial of the respective claim is final as to the respective evidence then of record and are not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. A subsequent September 2015 rating decision continued to deny the Veteran's service connection on the same basis of the January 2014 denial. However, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The applicable regulation defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. New evidence pertinent to this claim includes the Veteran's testimony at the August 2021 Board hearing. The Veteran testified that his Parkinson's disease may be related to his service aboard the USS Kitty Hawk in 1973. Specifically, he stated through his attorney that he may have passed through the "blue waters" of Vietnam, which would have entitled him to service connection based on presumptive herbicide exposure. In addition, the Veteran stated he possibly had toxic exposure to degreasers and chemicals while serving on the radar system for F4 Phantom aircraft. He asserted that his Parkinson's disease could have been caused by his in-service chemical exposure. Given the "low threshold" standard of Shade, and presuming the credibility of the evidence, including the Veteran's new contention of service-connection based on chemical exposure, the Board finds that the additional evidence received since the September 2015 denial is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of the service connection claim for Parkinson's disease. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for Parkinson's disease is met. 2. Entitlement to service connection for Parkinson's disease Service connection is warranted for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For organic diseases of the nervous system, such as Parkinson's disease, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA laws and regulations provide that, if a veteran was exposed to Agent Orange during service, certain listed diseases, such as Parkinson's disease, are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Id. Initially, as noted above, the Veteran claims that his Parkinson's disease is due to presumptive exposure to Agent Orange while he was aboard the USS Kitty Hawk and/or chemical exposure while working on the radar system of Phantom F4 aircraft in an unventilated area of the vessel. Regarding presumptive exposure to Agent Orange based on service in Vietnam, the Veteran's DD-214 Form, service personnel records, and STRs do not reflect that he served in Vietnam. In July 2015, Defense Personnel Records Information Retrieval System (DPRIS) stated that it had reviewed the 1973 command history for the USS Kitty Hawk and indicated that the ship was not in Vietnam. In September 2015, the VA issued a memorandum determining that there were no records of exposure to Agent Orange. The VA memorandum was based on a thorough review of the Veteran's STRs and service personnel records and after exhausting all attempts to corroborate Vietnam service. As to the Veteran's representative's assertions that he may have passed through the "blue waters" of Vietnam while "on his way to and from the Philippines and Africa," the Board is satisfied with DPRIS' determination that the USS Kitty Hawk was not in Vietnam in 1973. Notably, neither the Veteran nor his attorney's statements-which are speculative in nature- evidence that the USS Kitty Hawk was within 12 nautical miles of Vietnam in 1973. Thus, although the Veteran's diagnosed Parkinson's disease is among the diseases presumed service connected for veterans who were exposed to Agent Orange, and veterans who served in Vietnam are presumed to have been exposed to Agent Orange, the above evidence reflects that the Veteran did not serve in Vietnam. The Board also finds that the competent, credible evidence does not reflect that the Veteran had direct contact with an herbicide agent during his active service. As none of the evidence of record indicates that the Veteran directly contacted any herbicide agent, the Board finds that the evidence weighs against a finding that the Veteran had direct contact with an herbicide agent. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) The Board also notes that the Veteran's Parkinson's disease was first diagnosed in 2011, over 30 years after discharge from service. Accordingly, the Board finds that symptoms of Parkinson's were not chronic in service and continuous after service separation. Because Parkinson's disease did not manifest to a compensable degree in service or within one year of service separation, the Board finds that the presumption of service connection under 38 C.F.R. § 3.303 is not warranted. Notwithstanding the Board's finding that the Veteran did not serve in Vietnam and was not actually exposed to Agent Orange, the Veteran is not precluded from consideration of service connection on a direct basis, to include in-service exposure to toxic chemicals. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the presumptive provisions of VA laws and regulations are liberalizing and the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). To this end, as noted above, the Veteran asserts that his Parkinson's disease may be related to his in-service use of degreasers and other chemicals while cleaning electrical components of the Phantom F4 radar system. The Veteran's STRs do not contain any complaints, diagnoses, or treatment of Parkinson's disease or any related symptoms. Post-service, the Veteran was diagnosed with Parkinson's disease in October 2011. In October 2013, Dr. M., the Veteran's private physician, noted the Veteran's Parkinson's disease and listed Agent Orange as a potential cause related to his active service. However, Dr. M did not provide any rationale in support of this theory, and thus his opinion is of no probative value. It is again pointed out that there is no evidence on file establishing Agent Orange exposure. Private treatment records from Dr. W. dated in November 2015 document that he informed the Veteran that he does not know "by any stretch of the imagination that his [Parkinson's disease] is caused by Agent Orange." Upon review of the relevant evidence of record, the Board finds that the weight of the evidence does not support direct service connection for Parkinson's disease, to include possible in-service exposure to toxic chemicals. Although the Veteran contends that his Parkinson's disease is related to his active service, the Veteran has submitted no competent medical evidence or opinions to corroborate such a contention. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinion is not competent to provide the requisite etiology of Parkinson's disease, because such a determination requires medical expertise. As a lay person, the Veteran is considered competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a medical opinion as to the etiology of his Parkinson's disease. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran's opinion on its own is insufficient to provide the requisite nexus between his condition, to include as due to in-service chemical exposure, and his active service. Therefore, the lay statements regarding the Veteran's Parkinson's disease being related to service are not considered to be competent nexus evidence, as the Veteran is not medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to etiology. (Continued on the next page) In addition, there is no evidence of complaints related to, treatment for, or diagnoses of the disability during active service, and there is no indication of symptoms, treatment, or diagnoses for the disability until decades after service separation. The evidence of record does not relate currently diagnosed Parkinson's disease to service. As such, the Board finds that the weight of the evidence shows that service connection for Parkinson's disease is not warranted. For the reasons discussed above, a preponderance of the evidence is against the claim for service connection for Parkinson's disease. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.