Citation Nr: 21075095 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-51 713 DATE: December 17, 2021 REMANDED The issue of service connection for a traumatic brain injury (TBI) is remanded. The issue of service connection for Parkinson's disease is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1984 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2016 and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board, in pertinent part, denied service connection for Parkinson's disease and TBI. The Veteran appealed the June 2020 Board denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2021 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the portion of the June 2020 Board decision that denied service connection for Parkinson's disease and TBI and remanding it for action consistent with the terms of the Joint Motion. 1. The issue of service connection for a TBI is remanded. The Veteran claims that his TBI is due to his military service. Specifically, he reports that during service, his military duties included supporting Seal Team Six and that during his training he was shot in the head. See VA treatment record (December 2013); Veteran's notice of disagreement (March 2017). He asserts that his service treatment records do not reflect that he was shot in the head during service, as his in-service missions were classified. See Veteran's notice of disagreement (NOD) (March 2017). The Veteran stated that his chief petty officer provided a statement verifying that the Veteran was shot in the head during service. Id. Indeed, in a June 2016 statement, D.F.W., indicated that he served as a Chief Petty Officer in charge and that he served with the Veteran at NAB Little Creek from 1986 to August 1988, and that they supported Seal Team Six's classified missions. D.F.W. reported that their training included personnel role-playing in activities such as being shot in the head with wax bullets. The Veteran's military personnel records include an entry of assignments that states Seal Team Six at NAD LCREEK with a date of entry of December 1984 and a date of loss of January 1988. In a March 2017 statement in support of claim, the Veteran provided a checklist for head injury or TBI injury symptoms, which included the following symptoms endorsed: motor dysfunction; sensory dysfunction; hearing loss; alternation of sense of smell or taste; gaut, coordination, balance; speech; endocrine dysfunction; headaches; memory loss; and Parkinson's. In the June 2020 decision, the Board, in part, denied service connection for a TBI on the basis that the Veteran did not have "symptomatology that would indicate a current diagnosis of a TBI." In the August 2021 Joint Motion, the parties indicated that the Board failed to address the March 2017 statement in support of claim where the Veteran reported TBI symptoms. To this extent, the Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the nature and etiology of his TBI residuals. The evidence indicates that the Veteran may have TBI residuals that are associated with his military service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, a remand is warranted to afford the Veteran a VA examination to determine the nature and etiology of his claimed TBI residuals. 2. The issue of service connection for Parkinson's disease is remanded. The Veteran claims that his Parkinson's Disease is due to his military service, to include as due to in-service exposure to chemicals and other substances. See Veteran's notice of disagreement (March 2017). The Veteran also contends that repetitive closed head injury, like being shot with wax bullets, can lead to the development of a neurodegenerative disease including Parkinson's disease. Id. The Veteran also contends that he was blind folded, gagged and bound for hours and sometimes days, and was subjected to metal trashcans being placed on his head and then having someone beat on the trashcans with metal pipes for hours. See statement accompany VA 21-09601C-1 Parkinson's Disease Disability Benefits Questionnaire received January 8, 2016. In a June 2016 statement, D.F.W., indicated that he served with the Veteran at NAB Little Creek, and that he witnessed the Veteran handling toxic chemicals, such as solvents, engine oils, and fuels. D.F.W. also stated that in 1988, he witnessed fellow team personnel throw the Veteran into a dip tank used to clear engine parts, and that the tank was filled with various solvents to include ethylene glycol and engine oils. As noted above, D.F.W. also reported that their training included personnel role-playing that involved activities such as being shot in the head with wax bullets. The evidence shows that the Veteran has been diagnosed as having Parkinson's disease. See, e.g., VA examination report (July 2019). In June 2020, the Board, in part, relied on November 2013 and July 2019 VA examination reports (in which a VA examiner relied on articles from medical journals to opine that the Veteran's Parkinson's disease was not due to his military service) when it denied the claim of service connection for Parkinson's disease. In the August 2021 Joint Motion, the parties found that the Board relied on a November 2013 VA examination report where the examiner indicated that the Veteran used methamphetamine in the past, but that the Board failed to address the Veteran's statements that his treatment records were erroneous, as his claims file was merged with another veteran's claims file and an amended November 2013 VA examination report where the Veteran denied any illegal drug use as an adult. Additionally, the paries to the Joint Motion found that the Board relied on a July 2019 VA opinion without addressing the Veteran's assertions that the July 2019 VA opinion was based on an inaccurate factual premise, as the examiner relied on articles pertaining to a different condition. To this extent, the evidence shows that in April 2020, the Veteran's attorney provided several assertions regarding the adequacy of the November 2013 and July 2019 VA examination reports. According to the Veteran's attorney, the July 2019 examiner cited to an article regarding amphetamine use and Parkinson's disease (which involves other symptoms similar to Parkinson's disease but rather involves Parkinsonism), and that the examiner erroneously was referring to another article titled "Parkinson's disease and its causes". Additionally, the Veteran's attorney indicated that the Veteran asserts that he had never used illegal drugs, and that the Veteran informed the VA examiner's office that his records had been merged with another veteran's records, and that although the supervisor conceded that the Veteran's file had been merged with another veteran's claims file, there is no record of the erroneous merged file. The Board finds that a remand is warranted for further development. To this extent, upon remand, the AOJ should indicate whether the Veteran's claims was merged with another veteran's claims file, and to correct any errors in the Veteran's records. Additionally, the Board finds that upon remand, a VA opinion should be obtained regarding the Veteran's claim of service connection for Parkinson's disease, in light of the ambiguity regarding the medical articles cited by the July 2019 examiner. In addition, the Board notes that in an October 2016 letter from Dr. E.P. states she treats the Veteran for young onset Parkinson's disease, noted a DAT scan that is positive for Parkinsonism, and stated the Veteran's risk factors include repeated head trauma and exposure to toxins while serving in the Navy. Although Veteran's representative contends the Veteran has not been diagnosed with Parkinsonism, the Board finds clarification is needed as Dr. E.W's statement suggests the Veteran may have a diagnosis of Parkinsonism in addition to Parkinson's disease. Finally, as the Veteran's March 2017 NOD raised the issue of entitlement on a secondary basis, an opinion on secondary service connection is warranted if the Veteran's claimed residuals of a TBI are determined to be related to service. The matters are REMANDED for the following action: 1. Indicate whether the Veteran's claims was previously merged with another veteran's claims file, and correct any errors in the Veteran's records. See VA 21-4138, Statement in Support of Claim, received April 20, 2020. 2. Schedule the Veteran for an examination to determine the nature and etiology of his claimed TBI residuals. The examiner should review the entire claims file, before answering the following: a. Identity whether the Veteran has or had residuals of TBI since the date of his claim in March 2017 by (1) diagnosis or (2) functional impairment, even if resolved. In addressing the above, the examiner must address the March 2017 statement in support of claim, where the Veteran provided a checklist for head injury or TBI injury symptoms, which included the following symptoms endorsed: motor dysfunction; sensory dysfunction; hearing loss; alternation of sense of smell or taste, gaut, coordination, balance; speech; endocrine dysfunction, headaches; memory loss; and Parkinson's. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's TBI residuals had its onset in service or is otherwise related to service. In addressing the above, the examiner must address the Veteran's March 2017 statement accompanying his NOD in which he stated he was shot in the head with wax bullets, as well as the June 2016 statement from D.F.W. which notes that unit personnel participated in role-playing activities that included being shot in the head with wax bullets. The examiner must also address the Veteran's statement received January 2016 in which states that he was blind folded, gagged and bound for hours and sometimes days, and was subjected to metal trashcans being placed on his head and then having someone beat on the trashcans with metal pipes for hours. See statement accompany VA 21-09601C-1 Parkinson's Disease Disability Benefits Questionnaire received January 8, 2016. The examiner should provide a complete rationale for each opinion. 3. Obtain a medical opinion from a physician on the etiology of the Veteran's Parkinson's disease. a. Identity whether the Veteran has a diagnosis of Parkinson's disease, Parkinsonism, or any other Parkinson-like syndrome. In doing so, the examiner must address the October 2016 letter from Dr. E.P. which states she treats the Veteran for young onset Parkinson's disease and noted a DAT scan that is positive for Parkinsonism. b. Then, the physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's Parkinson's disease (or Parkinsonism or any other Parkinson-related syndrome), had its onset in service or is otherwise related to service, to include as due to exposure to chemicals and/or head trauma during service. In addressing the above, the examiner must address the Veteran's March 2017 statement, as well as the June 2016 statement from D.F.W. which notes that unit personnel participated in role-playing activities that included being shot in the head with wax bullets and that he witnessed the Veteran being thrown into a dip tank used to clean engine parts which was filled various solvents to include ethylene glycol and engine oils. In addition, the examiner must address the October 2016 statement from Dr. E.P. who treats the Veteran for young onset Parkinson's disease and stated the Veteran's risk factors include repeated head trauma and exposure to toxins while serving in the Navy. c. If the Veteran's residuals of a TBI are service connected as due to service, the examiner must also address whether the Veteran's Parkinson's disease (or Parkinsonism or any other Parkinson-related syndrome) is caused or aggravated by service-connected residuals of TBI. The examiner should provide a complete rationale for the opinion. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.