Citation Nr: 21011598 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 19-17 680 DATE: March 2, 2021 ORDER Entitlement to service connection for Parkinsonism is granted. Entitlement to service connection for depressive disorder secondary to service-connected posttraumatic stress disorder (PTSD) and Parkinsonism is granted. REMANDED Entitlement to service connection for a heart disorder, other than coronary artery disease, to include as secondary to service-connected disability is remanded. Entitlement to service connection for a cognitive disorder, to include Lewy body dementia, to include as secondary to service-connected disability is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicides while serving on the U.S.S. Gallant offshore the Republic of Vietnam. 2. The Veteran has a current diagnosis of Parkinsonism. 3. The Veteran’s depressive disorder is proximately due to his service-connected PTSD and Parkinsonism. CONCLUSIONS OF LAW 1. The criteria for service connection for Parkinsonism are met.  38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.102, 3.303, 3.307; William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (“NDAA FY 21”), Pub. L. No. 116-283, Stat. (2021), Title XCI, Sec. 9109. 2. The criteria for entitlement to service connection for depressive disorder on a secondary basis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1965 to August 1968, to include service offshore the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2015 and April 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board denied service connection for Parkinsonism, a cognitive disorder, dementia, and a depressive disorder, all including as due to herbicide agent exposure. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2020, the Court granted the parties’ Joint Motion for Remand (JMR) to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. In June 2020, the Board remanded the issue of entitlement to a TDIU for additional development. 1. Entitlement to service connection for Parkinsonism is granted. The Veteran asserts that his Parkinsonism was caused by his exposure to herbicide agents during his service in the Republic of Vietnam. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 are met, even though there is no record of such disease during service. In the September 2020 JMR, the parties agreed that the Board failed to address whether outstanding private treatment records from Oregon Health and Science University (OHSU) were relevant to the Veteran’s claims and whether the duty to assist was satisfied in obtaining or attempting to obtain the records. In December 2020, the Veteran’s attorney submitted the private treatment records in question. As the Court noted no other deficiencies in the record, and for the sake of judicial economy, the Board hereby incorporates all other facts and analysis of the vacated September 2020 Board decision by reference. See generally Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), vacated on other grounds sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). There is conflicting medical evidence as to whether the Veteran has a diagnosis of Parkinson’s disease. Following a thorough analysis of the medical evidence of record, in the February 2020 decision, the Board determined that the Veteran did not have a diagnosis of Parkinson’s disease. The Board noted that each of the Veteran’s provisional diagnoses of Parkinson’s disease had been recanted. A November 2019 VA dopamine transporters (DAT) scan revealed an equivocal study, essentially unchanged since 2013, with no evidence of Parkinson’s disease. Further, the private treatment records from OHSU, submitted by the Veteran’s attorney in December 2020, do not include a diagnosis of Parkinson’s disease. As such, the Board finds that the Veteran does not have a diagnosis of Parkinson’s disease. Further, the Board emphasizes that the parties to the JMR identified no other deficiencies in the Board’s analysis as to why entitlement to service connection for Parkinson’s disease was not warranted. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (“Court will [not] review BVA decisions in a piecemeal fashion”); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff’d, 972 F.2d 331 (Fed. Cir. 1992) (“[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court”). The Board is therefore confident that if the Court had any additional concerns regarding the Board’s findings that the Veteran does not have a diagnosis of Parkinson’s disease, such concerns would have surfaced in the JMR or the Court Order so that any deficiencies could be corrected. During the pendency of this appeal, Congress enacted the NDAA FY 21, Pub. L. No. 116-283, Stat. (2021), Title XCI, Section 9109, which in pertinent part, added Parkinsonism to the list of diseases presumptively associated with exposure to herbicide agents. In the December 2020 correspondence, the Veteran’s attorney’s asserts that the Veteran should be service-connected for Parkinsonism on a presumptive basis. The Board agrees. The Board’s February 2020 decision determined that the Veteran has a current diagnosis of Parkinsonism and is presumed to have been exposed to herbicide agents while serving on the U.S.S. Gallant offshore of the Republic of Vietnam. See September 2010 private disability benefits questionnaire (DBQ); May 2014 Neurology Progress Note;  38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Accordingly, as the Veteran is presumed to have been exposed to herbicide agents in service and is now diagnosed with Parkinsonism, presumptive service connection is warranted. Critically, the presumption of service incurrence has not been rebutted by competent medical evidence of an intercurrent injury or disease. See 38 C.F.R. § 3.307(d). 2. Entitlement to service connection for depressive disorder is granted. In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). There is no dispute that the Veteran has a current diagnosis of depressive disorder. See October 2010 and May 2018 VA examination reports. He is also service-connected for PTSD and now Parkinsonism. Accordingly, the first two elements of secondary service connection are established. As noted in the February 2020 Board decision, post-service treatment records and VA examinations indicate that the Veteran’s depression is comorbid with his other disabilities, including Parkinsonism. See October 2010 VA examination report. A July 2020 VA examination report includes depressed mood as a symptom of the Veteran’s service-connected PTSD. Additionally, in December 2020, Dr. J.M. opined that the Veteran’s depressive disorder was secondary to his PTSD. Dr. J.M. cited medical literature indicting that PTSD and comorbid PTSD/depression are indistinguishable. The Board acknowledges that the May 2018 VA examiner opined that it is less likely than not that the Veteran’s depression is secondary to his PTSD. The examiner reasoned that the Veteran did not provide any statements linking his depression to his PTSD symptoms, but instead to life stressors including his health. It is unclear if the health stressors noted by the May 2018 VA examiner included Parkinsonism. However, affording the Veteran the benefit of the doubt, the evidence of record establishes that the Veteran’s depressive disorder is proximately due to his service-connected PTSD and Parkinsonism. Thus, service connection for the Veteran’s depressive disorder is warranted on a secondary basis. See 38 C.F.R. § 3.310(a). REASONS FOR REMAND REASONS FOR REMAND 3. Entitlement to service connection for a heart disorder, other than coronary artery disease, to include as secondary to service-connected disability is remanded. The appeal involving the issue of entitlement to service connection for a heart disorder is remanded in order to obtain a VA medical opinion as to whether any cardiac disability other than service-connected coronary artery disease, is related to an in-service disease or injury, to include the Veteran’s presumed exposure to herbicide agents therein. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, based on the Veteran’s submissions, the Board finds that it is appropriate to expand the scope of the Veteran’s claim to include entitlement to service connection on a secondary basis. 4. Entitlement to service connection for a cognitive disorder, to include Lewy body dementia, is remanded. A review of the Veteran’s medical records includes diagnoses of Lewy body dementia, neurodegenerative disease, vascular dementia, supranuclear palsy, frontotemporal dementia, frontotemporal atrophy, and conversion disorder. The Veteran is treated annually at VA dementia clinics. A July 2010 VA neuropsychology evaluation included a diagnosis of cognitive disorder. See also September 2011 VA treatment record. The Veteran was afforded a VA Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ) examination in May 2018. While the examination was primarily for PTSD, the examiner diagnosed the Veteran with a mild neurocognitive disorder that appeared “secondary to physical concerns that may include Parkinson’s disease and heart problems.”(emphasis added). The Board finds this opinion to be inadequate to establish causal nexus in this case as it is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. A July 2020 VA PTSD DBQ includes a finding of neurocognitive disorder due to Parkinson’s disease. However, as noted above, the Veteran does not have a diagnosis of Parkinson’s but is now service-connected for Parkinsonism. Accordingly, the Board finds that the low standard detailed in McLendon is met and a VA examination and medical nexus opinion is warranted and should be obtained on remand. 5. Entitlement to a TDIU is remanded. Deferment of this issue is required. The issues of Parkinsonism and depressive disorder have been granted in this decision, disability ratings must be assigned, and thereafter TDIU will be readjudicated. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Obtain an addendum opinion regarding the etiology of the Veteran’s heart disorder, other than coronary artery disease. No additional examination of the Veteran is necessary, unless the reviewing examiner deems otherwise. The claims file, including a copy of this remand, must be made available for review. a) Identify all current heart disorders, other than coronary artery disease, to include but not limited to aortic valve stenosis, atrial fibrillation, and valvular heart disease. See September 2010 private DBQ; November 2016 VA thoracic surgery note; July 2020 VA examination report. b) For each heart disorder identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder (other than coronary artery disease) is related to service, to include his presumed exposure to herbicide agents therein. Please do not rely solely on the absence of any evidence of heart disease in the Veteran’s service treatment records, or the fact that presumptive service connection is not available for the diagnosed disability, or the opinion will be returned as inadequate. c) For each heart disorder identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder (other than coronary artery disease) is proximately due to his service-connected coronary artery disease or PTSD and depressive disorder. d) For each heart disorder identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder (other than coronary artery disease) is aggravated (worsened) by his service-connected coronary artery disease or PTSD and depressive disorder. In addressing secondary service connection, please address the article submitted by the Veteran entitled “New Study Finds Link Between Post Traumatic Stress Disorder and Increased Risk of Developing Atrial Fibrillation” and “PTSD May Raise Odds for Irregular Heartbeat.” See Third Party Correspondence (received October 9, 2020). Also, please note that the service-connected disability need not be diagnosed or service-connected at the time the secondary condition (heart disorder other than coronary artery disease) is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale must be provided for all opinions expressed. 4. Schedule the Veteran for an appropriate VA examination to address the current nature and etiology of his cognitive disorder. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should address the following: a) Identify all current cognitive disorders, to include but not limited to neurocognitive disorder, Lewy body dementia, neurodegenerative disease, vascular dementia, supranuclear palsy, frontotemporal dementia, frontotemporal atrophy, and conversion disorder. b) For each cognitive disorder diagnosed, the examiner is asked to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in, or is otherwise related to, the Veteran’s active service, to include his presumed exposure to herbicide agents therein? Please do not rely solely on the absence of any evidence of a cognitive disorder in the Veteran’s service treatment records, or the fact that presumptive service connection is not available for the diagnosed disability, or the opinion will be returned as inadequate. c) For each cognitive disorder identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is proximately due to his service-connected Parkinsonism, coronary artery disease, and/or PTSD and depressive disorder. d) For each cognitive disorder identified, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is aggravated (worsened) by his service-connected Parkinsonism, coronary artery disease, and/or PTSD and depressive disorder. Also, please note that the service-connected disability need not be diagnosed or service-connected at the time the cognitive disorder is incurred to establish secondary service connection, and reliance on this fact will render any secondary opinion inadequate. A complete rationale must be provided for all opinions expressed. The rationale should reflect consideration of the pertinent evidence of record, to include the Veteran’s lay statements and the May 2018 and July 2020 VA PTSD examination reports. 5. If following the above directives, the schedular requirements for a TDIU are not met, refer to the Director of Compensation Service the matter of whether a TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Director’s attention is drawn to Dr. J.M.’s December 2020 medical opinion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.