Citation Nr: 21015958 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-18 286 DATE: March 18, 2021 ORDER Entitlement to service connection for Parkinson’s disease, to include as due herbicide exposure, is granted. Entitlement to service connection for loss of use of the bilateral hands, secondary to Parkinson’s disease, is granted. Entitlement to service connection for loss use of the left arm, secondary to Parkinson’s disease, is granted. Entitlement to special monthly compensation based on aid and attendance is granted. REMANDED Entitlement to service connection for testicular cancer, to include as due to herbicide exposure, is remanded. Entitlement to service connection for erectile dysfunction, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. The probative evidence of record shows the Veteran served in the official waters of the Republic of Vietnam, and therefore, exposure to herbicides is presumed. 2. The Veteran was diagnosed with Parkinson’s disease, which is a presumptive disability under 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e). 3. The probative evidence of record shows the Veteran lost use of his hands and his left arm due to his now service-connected Parkinson’s disease. 4. The probative evidence of record shows the Veteran’s now service-connected disabilities required him to need regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for service connection for Parkinson’s disease, to include as due herbicide exposure, have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for loss of use of the bilateral hands, secondary to Parkinson’s disease, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for loss of use of the left arm, secondary to Parkinson’s disease, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for special monthly compensation based on aid and attendance have been met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1962 to June 1966, and in the United States Marine Corps from March 1970 to October 1975. Unfortunately, the Veteran died in August 2019. The Appellant is his surviving spouse and was substituted in June 2020. The Appellant was provided a hearing in December 2020 with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. Parkinson’s disease is one of the diseases listed. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). 1. Entitlement to Service Connection: Parkinson’s Disease The Appellant contends that the Veteran’s Parkinson’s disease was related to or caused by in-service exposure to Agent Orange and/or herbicides. As an initial matter, the Board acknowledges that the Veteran was diagnosed with Parkinson’s disease. Thus, the issue turns upon whether there is evidence of an in-service injury and a nexus between the said in-service event or injury and the present diagnosed disability. See 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s military personnel records show he was aboard the USS Coral Sea during which the ship was periodically in the official waters of the Republic of Vietnam between February 1965 to October 1965, as confirmed by the National Personnel Records Center. In Procopio v. Wilkie, the United States Court of Appeals for the Federal Circuit held that by using the formal term “Republic of Vietnam” in the Agent Orange Act, 38 U.S.C. § 1116, Congress unambiguously referred, consistent with uniform international law, to both its landmass and its 12 nautical mile territorial sea. The Federal Circuit concluded that veterans who served in the 12-mile nautical territorial sea of the Republic of Vietnam are entitled to presumptive service connection under 38 U.S.C. § 1116 for a disease listed there if they meet the other requirements of the statute. Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir 2019) (en banc). Although it is unclear the exact locations of the USS Coral Sea, the Veteran contended that the ship was located in the Tonkin Gulf and the Appellant’s representative further submitted deck logs from June 1965 and September 1965 which showed the ship was at or right outside the 12 nautical mile territorial sea. While this does not show a definitive location within the 12 nautical mile territorial sea, the Board finds that it is within the scope of the ship’s service, especially with documented locations so close to the territorial line, that the ship was at some point within the 12 nautical miles during the 8 months it was stationed in the waters of the Republic of Vietnam. Further, as noted above, the National Personnel Records Center provided that the USS Coral Sea was in the official waters of the Republic of Vietnam. Therefore, in weighing the benefit of the doubt in favor of the Veteran and the Appellant, and with consideration of Procopio, the Board finds that the Veteran was in the 12 nautical mile territorial sea of Vietnam, and thus, is entitled to presumptive service connection under 38 U.S.C. § 1116. See 38 U.S.C. §1116; 38 C.F.R §§ 3.307, 3.309; See also Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir 2019) (en banc). As the Board has found that the Veteran had qualifying service in the waters of the Republic of Vietnam and he was diagnosed with Parkinson’s disease, a disease listed in 38 C.F.R. § 3.309(e), the Board finds that the evidence supports a grant of service connection for Parkinson’s disease on a presumptive basis as a result of presumed herbicide exposure. 2. Entitlement to Service Connection: Loss of Use of Hands and Left Arm The Appellant contends that the Veteran had loss of use of his hands and his left arm due to his Parkinson’s disease. Service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The evidence of record shows the Veteran was being treated by private physicians for his Parkinson’s disease. In December 2011, the Veteran was noted as having a tremor in his left hand, clumsiness in the right hand, and coordination difficulties. The tremor in his left hand was noted as being moderate to severe and becoming worse. His right-hand symptoms were also noted as being severe. The Veteran was found to have difficulties with coordination involving the upper extremities. In February 2012, the Veteran’s private physician noted that the Veteran’s left arm tremors had been getting progressively worse interfering with the activities of daily living and coordination, which were now occurring in his right hand. It was noted the Veteran’s tremors were high amplitude low frequency tremors. The record also shows in January 2016, the Veteran was noted as gradually losing the use of his left arm. In discussing the Veteran’s motor symptoms, the physician noted he had tremors of the left hand and problems with slowness with activities of daily living. The physician noted he had problems with his left hand and only gross motor movements. He was noted as being able to continue his activities of daily living, but his wife had to shave for him. In October 2016, the Veteran was noted as continuing to have tremors and difficulty with control of his hands while eating. His left hand was noted as being of very little use and his right hand was noted as becoming more affected and less useful. In a March 2017 visit, the Veteran’s private physician noted the Veteran’s Parkinsonism continued to progress with loss of function. The Veteran now required assistance with activities of daily living, to include dressing, brushing his teeth, showering, and eating. In September 2017, the Veteran was noted as needing assistance with showering, dressing, and grooming. He had rapid, irregular, and intermittent tremors on the left and moderate bradykinesia on the right hand. The symptoms were noted as being secondary to Parkinsonism. The Veteran’s disease was noted as being rapidly progressive Parkinsonian disorder with dementia. After review of the evidence of record, the Board finds that the probative evidence of record shows the Veteran’s Parkinson’s disease caused the Veteran to lose the use of his left arm and of both his hands. The record shows his Parkinson’s disease was consistently noted as getting progressively worse with severe tremors in both hands and loss of function in the left arm. His condition was even described as causing overall loss of function by his private physician in March 2017. Therefore, due to the Board granting service connection for the Veteran’s Parkinson’s disease in the decision herein, the Board concludes that the probative evidence of record is for the secondary service connection claims and the benefit of the doubt doctrine has been applied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).   3. Entitlement to Special Monthly Compensation: Aid and Attendance The Appellant contends that the Veteran required aid and attendance due to his Parkinson’s disease. Special monthly compensation (SMC) is available when, “‘as the result of service-connected disability,’ a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. §1114 (k)-(s)). SMC at the aid and attendance rate is payable when a Veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). A number of factors are to be accorded consideration in determining the need for regular aid and attendance, including: inability of a claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 38 C.F.R. §§ 3.350 (b), 3.352(a). Here, the evidence of record shows the Veteran’s Parkinson’s disease led to the loss of function of his left arm, and use of both hands, as noted above. Further, as also provided above, beginning in February 2012, the Veteran began needing assistance for his daily living activities. In March 2017, the Veteran was noted by his private physician as now needing assistance to dress, brush his teeth, shower, and eat. His Parkinson’s disease was noted as progressing with loss of function. The Veteran was also noted as being wheelchair bound and falling during transfers. By August 2018, the Veteran was noted as being no longer ambulatory and completely wheelchair bound. Moreover, during the Appellant’s December 2020 Board hearing, the Appellant reported that she had to stop working in 2013 in order to stay home and care for the Veteran. She reported his Parkinson’s disease was rapidly progressing and he was not responding well to his medications. The Appellant stated the Veteran began suffering additional difficulty in dressing and feeding himself. In light of the foregoing, the Board concludes that the probative evidence of record is for the claim and the benefit of the doubt doctrine has been applied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Accordingly, entitlement to SMC based on the need for regular aid and attendance is granted. As special monthly compensation based on aid and attendance is a greater benefit than special monthly compensation at the housebound rate, the issue of entitlement to special monthly compensation at the housebound rate is moot. REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran’s remaining claims. Entitlement to Service Connection: Testicular Cancer and Erectile Dysfunction The Appellant contends that the Veteran’s testicular cancer and erectile dysfunction are due to his active duty service, to include as due to herbicide exposure and/or secondary to his Parkinson’s disease. The Board finds that an opinion on the claimed conditions is needed. The evidence of record shows the Veteran was diagnosed with testicular cancer and reported erectile dysfunction. Further, the Board has determined in the decision herein that the Veteran had qualifying service in the Republic of Vietnam official waters and therefore, exposure to herbicides is presumed. Additionally, the Board has granted service connection for Parkinson’s disease, which the Appellant contended in her December 2020 hearing may also have been the cause for the claimed conditions. Therefore, a remand is required in order to obtain an opinion addressing the nature and etiology of the claimed conditions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain and associate with the electronic file any outstanding VA treatment records relevant to the Appellant’s claims. 2. Then, send the claims file to an appropriate examiner to determine the etiology of the Veteran’s testicular cancer and erectile dysfunction. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, the Veteran’s and Appellant’s competent lay statements, as well as the Appellant’s and Veteran’s previous reports regarding the onset and progression of symptomatology, the examiner should opine as to the following: (a) Is it at least at least as likely as not (50 percent probability or more) that the Veteran’s testicular cancer and erectile dysfunction were due to his active duty service, to include his presumed exposure to herbicides/Agent Orange? (b)  Is it at least at least as likely as not (50 percent probability or more) that the Veteran’s testicular cancer and erectile dysfunction were due to his service-connected Parkinson’s disability?    (c) Is it at least as likely as not (50 percent probability or more) that the Veteran’s testicular cancer and erectile dysfunction were aggravated by his service-connected Parkinson’s disease, to include all symptoms associated with Parkinson’s disease, as well as any medication taken for the condition?  “Aggravation” is defined as any worsening beyond the natural progression of the disability. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration.  A clearly-stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records.    If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided.   JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.