Citation Nr: 21009980 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-20 862 DATE: February 23, 2021 ORDER Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicides is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Resolving any reasonable doubt, the Veteran had Parkinson’s disease that was due to his conceded exposure to herbicides. CONCLUSION OF LAW The criteria for entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicides have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from July 1951 to July 1955, from January 1958 to January 1966, and from July 1966 to June 1977, with service in Vietnam. It is unfortunate that in April 2016, the Veteran died. In an October 2019 letter, the AOJ indicated that the Appellant, the Veteran’s surviving spouse, has been properly substituted. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A virtual hearing was scheduled for December 2020. Due to the Appellant’s difficulty in connecting to the virtual hearing, the hearing is considered cancelled. The Appellant did not request a rescheduled hearing, and her request for a hearing is therefore considered withdrawn. 38 C.F.R. § 20.704. The Board finds it necessary to explain the procedural history as discussed herein. In this case, prior to the Veteran’s death, the Veteran filed a VA Form 9 in June 2015, indicating that he was only appealing the issues of Parkinson’s disease and TDIU. The Veteran requested a hearing. As noted above, in April 2016, the Veteran died. Then, in October 2019 the appellant was substituted. However, in February 2020, the RO mistakenly issued another “statement of the case”, listing three issues that were previously adjudicated of service connection for Parkinson’s disease, service connection for chloracne and entitlement to a TDIU, and stating that a De Novo Review was performed based on all evidence of record. When in fact, this actually should have been issued as a supplemental statement of the case, not a statement of case. Thus, while the appellant submitted an additional VA form 9 in March 2020, the Veteran had previously perfected this appeal prior to his death as to the issues of service connection for Parkinson’s disease and entitlement to a TDIU, the issues for which the appellant has been substituted. Accordingly, those are the two issues currently before the Board on appeal. 1. Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicides Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). VA regulations provide that, for a Veteran who has been exposed to an herbicide agent during military service, service connection for certain enumerated diseases will be presumed. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran’s military personnel file and DD Form 214 confirm the Veteran’s service in Vietnam, therefore exposure to herbicides is conceded. The Veteran’s VA treatment records show a diagnosis of Parkinson’s disease. The Veteran was afforded a VA examination in March 2014. The Veteran was diagnosed with Parkinson’s disease. The examiner noted that the Veteran’s Parkinson’s disease impacted his ability to work. The examiner stated that the Veteran’s tremor affected his dexterity and that he was unable to work with electrical wires or use most hand tools. The examiner stated that the Veteran needed a walking stick for balance and was unable to carry anything. The examiner noted that the Veteran had a diagnosis of Parkinson’s disease listed in the VA problem list. The examiner stated that the Veteran had signs and symptoms consistent with Parkinson’s disease and was being treated accordingly. The examiner opined that the Veteran’s Parkinson’s disease was as likely as not due, caused by, or incurred in military service. VA examinations dated in November 2011 and January 2015 reported no diagnosis of Parkinson’s disease. After resolving any reasonable doubt in favor of the Veteran, the Board finds that prior to his death, the Veteran had Parkinson’s disease that was due to his conceded exposure to herbicides. Accordingly, the Veteran’s claim for Parkinson’s disease is granted. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Prior to the Veteran’s death, the Veteran claimed that he was unable to maintain substantially gainful employment due to his service-connected posttraumatic stress disorder (PTSD) and his nerve symptoms. He reported that he last worked full time in May 2001. In a January 2012 rating decision, the RO denied TDIU because the Veteran did not meet the schedular criteria for a TDIU. As the Board is granting service connection for Parkinson’s disease herein, the RO will implement this grant, including the assignment of a disability rating and effective date. The TDIU matter is inextricably intertwined and should be readjudicated by the RO after implementation of the service connection grant. (Continued on the next page)   The matters are REMANDED for the following action: 1. After implementing the grant of service connection for Parkinson’s disease contained in this decision, readjudicate the matter of entitlement to a total disability rating based on individual unemployability. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.