Citation Nr: 21023203 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-22 618 DATE: April 20, 2021 ORDER Service connection for parkinsonism, as due to herbicide agent exposure, is granted. REMANDED Service connection for ischemic heart disease is remanded. Service connection for hypertension is remanded. FINDING OF FACT The Veteran’s parkinsonism is presumptively related to his in-service herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116(a)(2), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1963 to August 1966, including service in Thailand. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Service Connection The Veteran contends that he developed Parkinsonism as a result of his conceded Agent Orange exposure while serving in Thailand. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). If the disorder is a chronic disease, service connection may be granted if it becomes manifest to a degree of 10 percent within the presumptive period; the presumptive period for diabetes mellitus is one year. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicides during that service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases, Parkinson’s disease, will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (a)(6)(ii), 3.309(e). Additionally, on January 1, 2021, the National Defense Authorization Act for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2), to include parkinsonism, bladder cancer and hypothyroidism. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 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. See Alemany v. Brown, 9 Vet. App. 518 (1996). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. See 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 1. Parkinsonism disease The Veteran contends that he developed parkinsonism as a result of his active duty service. See BVA hearing transcript (February 2021). The Veteran had active service in Thailand, and exposure to herbicide agents is conceded. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents even though there is no record of such disease during service, if they manifest to a compensable degree after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. Of note, the disease of parkinsonism was recently added to the list of diseases subject to presumptive service connection, via the National Defense Authorization Act for Fiscal Year 2021, effective January 1, 2021. See Pub.L. 116-283; 38 U.S.C. § 1116(a)(2) (January 1, 2021). There is no dispute that the Veteran had a diagnosis of parkinsonism during the pendency of the claim. See VA medica treatment records (April 2018). Additionally, VA has also already established that the Veteran served in Thailand and is presumed to have been exposed to herbicide agents. As noted above, the disease of parkinsonism was recently added to the list of diseases subject to presumptive service connection under 38 U.S.C. § 1116(a)(2) (January 1, 2021). Moreover, in the present case, the Board finds that the Veteran’s parkinsonism became manifest to a compensable degree. In light of the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for parkinsonism may be presumed. The benefit sought on appeal is granted. REASONS FOR REMAND 2. Ischemic heart disease and hypertension The Veteran asserts that presumptive service connection is warranted for ischemic heart disease because he served in country in Thailand and thus is presumed exposed to herbicides while serving in Thailand. In Support, he provided credible testimony regarding the relation of his conditions to service. See BVA hearing transcript (February 2021). However, the Veteran’s medical record is not clear if the Veteran suffered from a heart condition or has a diagnosis for ischemic heart disease. Thus, the Board finds that a VA examination is necessary to determine if the Veteran currently or in the past suffered from a heart condition or has a diagnosis of ischemic heart disease. If a heart condition is present, the examiner must opine if this condition is aggravated or caused by his service-connected conditions. Further, the examiner should consider the credible lay statements regarding the onset of his heart condition. Regarding his hypertension, the Board finds that the latest VA examination was not adequate and did not provide a complete rationale regarding the onset and nature of the Veteran’s hypertension. See VA medical examination (January 2017). Thus, the Veteran should be afforded a complete examination to determine the onset, etiology and nature of his hypertension condition. Additionally, the examiner must opine if his hypertension is aggravated or caused by his service-connected conditions. Further, the examiner should consider the credible lay statements regarding the onset of his hypertension condition. Indeed, the record shows treatment and a diagnosis of hypertension. The NAS has upgraded hypertension to the “sufficient” category from “limited or suggestive,” indicating that “there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=25137. On remand, a VA examiner must acknowledge and discuss the NAS findings. As there is no adequate examination to determine the cause, onset, etiology of his hypertension and if a heart condition was present, a remand is necessary to have the Veteran examined and for an examiner to provide opinions necessary to adjudicate this appeal The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service heart disease and hypertension. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). Whether an in-person examination is necessary should be determined by the examiner. The examiner must determine if the Veteran suffers from a heart disease and if this condition is related to or had its onset in service. Also, the examiner must opine as to whether it is at least as likely as not that the Veteran’s hypertension is related to or had its onset in service. In offering this opinion, the examiner must acknowledge and discuss the NAS study cited above. Additionally, the examiner must opine if his heart disease and hypertension are related to service or aggravated by service or his service-connected conditions. In offering this opinion, the examiner must acknowledge and discuss the Veteran’s competent and lay statements of his conditions and any lay evidence regarding the onset of his disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.