Citation Nr: 21007238 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-58 722 DATE: February 9, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for coronary artery disease status post myocardial infarction (CAD) is reopened. To this limited extent only, the appeal of that issue is granted. New and material evidence having been presented, the claim of entitlement to service connection for Parkinson’s disease is reopened. To this limited extent only, the appeal of that issue is granted. Entitlement to service connection for coronary artery disease status post myocardial infarction (CAD) is denied. REMANDED Entitlement to service connection for Parkinson’s disease is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for CAD was denied in a November 2012 rating decision that was not appealed; no further evidence relevant to the Veteran’s service connection claim for CAD was submitted for a period of one year following the November 2012 rating decision. 2. The Veteran’s claim of service connection for Parkinson’s disease was denied in a March 2014 rating decision that was not appealed; no further evidence relevant to the Veteran’s service connection claim for Parkinson’s disease was submitted for a period of one year following the March 2014 rating decision. 3. Evidence relevant to the CAD claim was submitted since the November 2012 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for CAD. 4. Evidence relevant to the Parkinson’s disease claim was submitted since the March 2014 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for Parkinson’s disease. 5. The evidence does not establish that the Veteran was present in Vietnam or in or near the Korean DMZ during his military service; and the preponderance of the evidence is against a finding that the Veteran was actually exposed to herbicides during service, to include as a result of handling equipment that was in Vietnam. 6. The Veteran’s CAD was first diagnosed decades after the Veteran separated from service, and the preponderance of the evidence is against finding that it began during active service, manifested to a compensable degree within one year of service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for CAD have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for reopening the previously denied claim for Parkinson’s disease have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for service connection for CAD have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to March 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a hearing before the undersigned. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means existing 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 prior 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). 1. New and material evidence having been presented, the claim of entitlement to service connection for CAD is reopened. To this limited extent only, the appeal of that issue is granted. The Veteran filed his initial claim of service connection for CAD in August 2010. In a January 2011 rating decision, the RO denied service connection for CAD. Specifically, the RO found that there was no evidence of treatment or diagnosis of this condition in the Veteran’s service treatment records, no evidence of this condition manifesting to a compensable degree within one year of discharge from active military service, and no evidence showing entitlement based on any presumptive provision of law. Thus, the RO determined that there was no nexus between the Veteran’s CAD and his service. The Veteran submitted new evidence within the appeal period after the January 2011 rating decision regarding this claim, which the RO took as a request to reconsider the claim, and thus, the January 2011 rating decision was not a final decision. In a November 2012 rating decision, the RO denied the Veteran’s claim for CAD because he did not submit new and material evidence. The RO also acknowledged that, while CAD was now presumptively associated with herbicide exposure, there was no evidence that the Veteran was exposed to herbicides during his time in service. The Veteran did not submit any additional evidence respecting this claim or a notice of disagreement with the decision within one year of the November 2012 rating decision. Thus, the November 2012 rating decision became final as to the Veteran’s CAD claim. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for CAD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the November 2012 rating decision, the Veteran testified at the December 2020 Board hearing that he was exposed to herbicides when he worked on equipment that he alleges came directly from Vietnam and was covered in a substance he believed to be herbicides. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim for service connection for CAD has been received in this case, and this claim is reopened. See 38 C.F.R. § 3.156(a). The Board notes that service department records that existed at the time of the November 2012 rating decision were associated with the claims file in September 2015, however, the Board finds that these records are not relevant to the Veteran’s claim for service connection for CAD as they do not relate to any in-service manifestation or symptomatology of CAD. Thus, the provisions of 38 C.F.R. § 3.156(c) do not apply. 2. New and material evidence having been presented, the claim of entitlement to service connection for Parkinson’s disease is reopened. To this limited extent only, the appeal of that issue is granted. The Veteran filed his initial claim of service connection for Parkinson’s disease in August 2010. In a January 2011 rating decision, the RO denied service connection for Parkinson’s disease. Specifically, the RO found that there was no evidence of treatment or diagnosis of this condition in the Veteran’s service treatment records, no evidence of this condition manifesting to a compensable degree within one year of discharge from active military service, and no evidence showing entitlement based on any presumptive provision of law. Thus, the RO determined that there was no nexus between the Veteran’s Parkinson’s disease and his service. The Veteran submitted new evidence within the appeal period after the January 2011 rating decision regarding this claim, which the RO took as a request to reconsider the claims, thus the January 2011 rating decision was not a final decision. In a November 2012 rating decision, the RO denied the Veteran’s claim because he did not submit new and material evidence. The RO also acknowledged that, while Parkinson’s disease was now presumptively associated with herbicide exposure, there was no evidence that the Veteran was exposed to herbicides during his time in service. The Veteran again submitted new and material evidence, as well as a new claim, regarding his claim for Parkinson’s disease within the appeal period after the November 2012 rating decision. Thus, the November 2012 rating decision was not a final decision as to the Veteran’s claim for Parkinson’s disease In a March 2014 rating decision, the RO denied the claim for Parkinson’s disease, again stating the evidence did not show it was incurred in or caused by the Veteran’s military service either on a direct or presumptive basis. The Veteran did not submit any additional evidence respecting this claim or a notice of disagreement with the decision within one year of the March 2014 rating decision. Thus, the March 2014 rating decision became final as to the Veteran’s Parkinson’s disease claim. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for Parkinson’s disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the March 2014 rating decision, the Veteran testified at the December 2020 Board hearing that he believes he was exposed to herbicides when he worked on equipment that he alleged came directly from Vietnam and was covered in herbicides. In addition, the Veteran submitted an opinion from a private physician reflecting that the Veteran’s Parkinson’s disease may have been triggered by events during military service. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim for service connection for Parkinson’s disease has been received in this case, and this claim is reopened. See 38 C.F.R. § 3.156(a). The Board notes that service department records that existed at the time of the March 2014 rating decision were associated with the claims file in September 2015, however, the Board finds that these records are not relevant to the Veteran’s claim for service connection for Parkinson’s disease as they do not relate to any in-service manifestation or symptomatology of such condition. Thus, the provisions of 38 C.F.R. § 3.156(c) do not apply. Service Connection Entitlement to service connection for CAD is denied. The Veteran’s CAD claim in this case depends primarily upon whether the evidence of record shows that he was exposed to herbicides while in service. The law provides a presumption of service connection for certain diseases that are associated with exposure to herbicide agents and become manifest within a specified time period. This presumption is available for a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam or in or near the Korean DMZ during specified periods of time, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). CAD is on the list of the enumerated diseases presumed to be related to herbicide agent exposure in Vietnam. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In this case, the Veteran did not serve in Vietnam or Korea, and thus, he is not entitled to the presumption of exposure to herbicides. 38 C.F.R. § 3.307, 3.309. While the presumption of exposure to herbicides is not available, the criteria for service connection for diseases as due to exposure to herbicides could be met if the evidence reflects actual exposure. The Veteran has contended that he was exposed to herbicides while handling equipment, including radars, missiles, launchers, and loaders, that came directly from Vietnam and were covered in herbicides, and he was not provided any protective equipment. The Board finds the Veteran is competent and credible to report that he handled equipment that was covered in some sort of residue; however, he is not competent to determine that the residue on the equipment was Agent Orange or any other herbicide. The Veteran has not demonstrated that he has any sort of specialized training that would enable him to recognize a chemical substance, such as an herbicide, by sight. Thus, the Veteran’s contention that he was exposed to herbicides while he was handling equipment that came directly from Vietnam is not competent evidence that he was actually exposed to herbicides. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). Because the evidence weighs against a finding that the Veteran was actually or presumptively exposed to herbicide agents during service, claims for entitlement to service connection based on herbicide exposure cannot be granted. Nonetheless, the Board is obligated to fully consider the Veteran’s claim on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases listed in 38 C.F.R. § 3.309(a), including coronary disease, will be service connected on a presumptive basis if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Further, if a chronic disease is noted during service or during the one-year presumptive period after separation from service, a continuity of symptomatology can show chronicity and a subsequent manifestation of the same disease is presumed to be service connected. See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The evidence of record establishes that the Veteran’s CAD first developed several decades after the Veteran’s separation from service; therefore, the presumptive provisions for chronic diseases under 38 C.F.R. § 3.307(a)(3) are not for application. There is also no indication that CAD was noted in service or within one year after separation from service, therefore, discussion of the related concept of continuity of symptomatology is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (2013). Finally, there is no competent evidence of record providing, or even indicating, a nexus between the Veteran’s CAD and his active duty. In sum, because the preponderance of the evidence establishes that the Veteran was not exposed to herbicide agents and there is otherwise no nexus between the Veteran’s CAD and his time in service, the benefit-of-the-doubt doctrine does not apply, and the Veteran’s service connection claim for CAD must be denied on both a presumptive and direct basis. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for Parkinson’s disease is remanded. The Veteran has not been provided a VA examination regarding his Parkinson’s disease. As previously stated, an October 2015 private opinion submitted by the Veteran reflects that the Veteran’s Parkinson’s disease may have been triggered by events during military service. Although the October 2015 private opinion is insufficient by itself to grant the Veteran’s claim, it does indicate that the Veteran may be entitled to service connection in a direct basis. Accordingly, a VA examination is necessary to obtain an opinion regarding the Veteran’s service connection claim for Parkinson’s disease on a direct basis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA is obliged to provide an examination where there is insufficient information to decide the claim and there is an indication the current disability may be associated with service). In addition, it appears as though the Veteran is receiving disability benefits from the Social Security Administration (SSA), but no efforts have been made to associate those records with the claims file. Because the Board cannot say that these records are not relevant, efforts should be made to associate them with the claims file. This matter is REMANDED for the following action: 1. Obtain from the Social Security Administration the Veteran’s records regarding his disability claim, to include the underlying medical records considered. If these records are unavailable and further efforts to obtain them would be futile, this must be clearly documented in the file. 2. Obtain an opinion with a qualified clinician regarding the Veteran’s claim for service connection for Parkinson’s disease. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s Parkinson’s disease began in or is otherwise caused by the Veteran’s active service. In doing so, the examiner must address the October 2015 private opinion. The examiner is advised that the Veteran is competent to report his symptoms capable of lay observation, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.