Citation Nr: 21029230 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-22 154 DATE: May 13, 2021 ORDER Entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure, is granted. Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a respiratory or pulmonary disability manifested by shortness of breath, to include asbestosis, is denied. Entitlement to service connection for an acquired psychiatric disability, to include with symptoms of anxiety and depression, is granted. Entitlement to service connection for erectile dysfunction is granted. FINDINGS OF FACT 1. The Veteran died in July 2019 but had a diagnosis of Parkinson's disease and served aboard the USS Navasota while it was in the official waters of Vietnam during a period warranting presumptive exposure to an herbicide agent; moreover, Parkinson's disease is presumptively associated with exposure to an herbicide agent (the dioxin in Agent Orange), absent affirmative indication to the contrary. 2. The Veteran did not have a diagnosis of bilateral hearing loss disability or of a disability owing to asbestos exposure during the pendency of these claims, and any contention of continuous symptoms of tinnitus since his service is not credible; the most probative evidence of record is against finding that it is as likely as not that he had a ratable hearing loss disability, respiratory/pulmonary disability, or tinnitus because of his service or that was caused or aggravated by a service-connected disability. 3. It is just as likely as not, however, his Parkinson's disease caused or aggravated an acquired psychiatric disability and, in turn, also caused or aggravated his erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria are met for entitlement to service connection for Parkinson's disease since presumptively incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria are not met for entitlement to service connection for bilateral hearing loss disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria are not met for entitlement to service connection for tinnitus. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria are not met for entitlement to service connection for a respiratory or pulmonary disability manifested by shortness of breath, including asbestosis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. But the criteria are met for entitlement to service connection for an acquired psychiatric disability, including with symptoms of anxiety and depression. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria also are met for entitlement to service connection for erectile dysfunction. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1963 to December 1968. He also had additional service in the National Guard. He died in July 2019. The Appellant is his surviving spouse, so widow, and she has been substituted for him in this appeal to process these claims to completion. The Veteran's claim for service connection for Parkinson's disease was originally denied in an unappealed May 2011 rating decision by a Regional Office (RO). However, in the years since VA has issued a liberalizing regulation creating a new basis of entitlement to service connection for Parkinson's disease as a condition presumptively associated with exposure to herbicide agents. Thus, new and material evidence is not required to reopen this claim before readjudicating it on its underlying merits. Moreover, because of this liberalizing law, the Board is granting this claim with the benefit of the presumptive incurrence of this disease during the Veteran's service owing to his presumed exposure to the dioxin in Agent Orange. Service Connection In general, establishing service connection requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, certain "chronic" diseases (including sensorineural hearing loss, tinnitus, and bronchiectasis) will be presumed to have been incurred in service, absent an intervening ("intercurrent") cause, if they were shown as chronic in service or if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). There also are other presumptions worth noting. Namely, a Veteran who, during active military service, served "in-country" in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to certain herbicide agents, including to an herbicide commonly referred to as Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.309(a)(6)(iii). In Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019), the Federal Circuit Court held that 38 U.S.C. § 1116 unambiguously expressed Congress' intent that those who served in the 12 nautical mile territorial sea of the "Republic of Vietnam" are entitled to the presumption of herbicide exposure. In addition, the Blue Water Navy Vietnam Veterans Act of 2019, H.R. 299, 116th Cong. (2019) (effective January 1, 2020), extends the presumption of exposure to herbicide agents to those veterans who served within the 12 nautical miles of Vietnam. Certain diseases, in turn, shall be presumptively service connected if the Veteran was exposed to an herbicide agent during service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). These diseases presumed to be caused by herbicide exposure are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as adult-onset diabetes), Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, "delayed onset" peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Moreover, the National Defense Authorization Act for Fiscal Year 2021 added three other disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to now also include parkinsonism, bladder cancer, and hypothyroidism. According to 38 C.F.R. § 3.310, service connection may be granted as well on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for Parkinson's disease. In 2006, the Veteran was diagnosed with Parkinson's disease. His military personnel records indicate that he served on the USS Navasota from April 1964 to December 1968. A Personal Information Exchange System (PIES) response to a VA request for the dates of the Veteran's service in Vietnam reflects that, although it could not be determined that he served in Vietnam (meaning set foot on the landmass), the USS Navasota was in the official waters of Vietnam on several occasions including in September 1965, October 1965, November 1965, December 1965, January 1966, February 1966, March 1966, April 1966, November 1966, December 1966, January 19767, February 1967, March 1967, April 1967, May 1967, December 1967, January 1968, March 1968, April 1968, May 1968, June 1968, and July 1968. The Board consequently accepts that the Veteran's ship, the USS Navasota, navigated within the permissible 12-nautical mile radius off the Coast of Vietnam while he was assigned to it. Thus, it is presumed that he was exposed to an herbicide agent. Therefore, because, as explained, Parkinson's disease is presumptively associated with exposure to an herbicide agent, there are now sufficient legal grounds to grant service connection for this disease. 2. Entitlement to service connection for bilateral hearing loss disability For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a ratable disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Although a September 1981 record for the National Guard notes the Veteran had a "slight decrease in hearing acuity", that is insufficient reason to conclude he had sufficient hearing loss according to § 3.385 to in turn be considered a ratable disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of present disability there necessarily can be no valid claim). At the very least, the evidence must show that, at some point during the appeal period, the Veteran has had the disability for which benefits are being claimed. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McClain on a recent diagnosis even predating the filing of a claim). A current disability means a disability shown by competent and credible (i.e., probative) evidence to exist. See Chelte v. Brown, 10 Vet. App. 268 (1997). All this is significant because, as concerning this claim, there simply is not any probative evidence of record indicating the Veteran had received indication of sufficient hearing loss in either ear to be considered a ratable disability for VA compensation purposes, much less because of his military service. VA and private clinical records show the Veteran's hearing acuity was intact on several rather recent occasions. See, e.g., July 2006, December 2007, August 2010, and August 2011 records. A December 2014 Disability Benefits Questionnaire (DBQ) also shows the Veteran did not have hearing loss meeting the threshold minimum § 3.385 requirements to be considered a ratable disability for VA compensation purposes. More specifically, according to the DBQ, he had following audiology testing threshold results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 25 20 LEFT 20 20 15 25 35 His speech discrimination score was 94 percent for each ear using the Maryland CNC word list. Based on those examination findings, the Veteran's hearing loss was insufficient to meet the threshold minimum requirements for a ratable disability for VA compensation purposes according to § 3.385. The Veteran was competent to attest to factual matters of which he had first-hand knowledge (e.g., experiencing difficulty hearing). However, he was not competent to state he had sufficient hearing loss to be considered an actual ratable hearing loss disability for VA compensation purposes. While he has experience as a nurse, he has not been shown to be able to accurately assign audiology thresholds and/or speech recognition scores. (The Appellant-widow also has not been shown to have the necessary qualifications to make such findings.) Quite simply, not all hearing loss is sufficient to constitute a ratable "disability" for VA compensation purposes. And, here, since there is no competent clinical evidence of record showing the Veteran had a ratable hearing loss disability for VA compensation purposes, meaning satisfying the threshold minimum requirements of 38 C.F.R. § 3.385, service connection is not warranted. 3. Entitlement to service connection for tinnitus Tinnitus is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layperson such as the Veteran is considered competent to report the manifestations of this condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Charles v. Principi, 16 Vet. App. 370 (2002) (holding that tinnitus is subjective and the kind of condition lay testimony is competent to describe). Moreover, as pointed out in Walker, since tinnitus is a presumptive condition of the type contemplated by 38 C.F.R. § 3.309(a), it is permissible to show continuity of symptoms since service according to § 3.303(b) as an alternative means of establishing the required correlation ("nexus") between the condition and the Veteran's service. If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link the currently claimed disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service, (2) symptoms of that condition continued after service, and (3) the current condition is related to those continuing symptoms. See Savage, 10 Vet. App. at 495-97. To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent." Savage, 10 Vet. App. at 497. However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent." Id (citations omitted). Here, the Veteran's service treatment records (STRs) are unremarkable for complaints of tinnitus or diagnosis of this disease. Post service, so following the conclusion of his military service, there are no clinical records noting tinnitus. He was diagnosed with Parkinson's disease in approximately 2006 and, thus, had numerous neurological examinations. If he had tinnitus, which is considered an organic disease of the nervous system, it seems only reasonable that it would have been noted in the records. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). In addition, the lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). And, notably, even though he filed a claim for service connection, his clinical records reflect that he actually denied tinnitus (see October 2013, April 2015, and October 2016 records). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Aside from that, when undergoing a VA audiological examination in December 2014, he did not report experiencing recurrent tinnitus. The earliest contention of tinnitus was not until 2015, after the Veteran had filed a VA claim to try and establish his entitlement to service connection for it. See, e.g., Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony). He conversely had denied having this disease on earlier (intervening) occasions when there was no incentive financial or otherwise to fabricate information for personal gain. The Board consequently finds that any contention of tinnitus, including especially continuously since his service, is not credible given the lack of clinical records noting any relevant complaints in service, or diagnosis, but also the lack of clinical records in the next several decades, and the specific denials of tinnitus in 2013, 2015, and 2016. Even assuming for the sake of argument the Veteran eventually developed tinnitus at some point during the pendency of his claim for this disease, there is no probative evidence (i.e., with adequate rationale and based on a review of the pertinent clinical records) tending to suggest this disease was attributable to his service. For these reasons and bases, the Board finds that service connection for tinnitus is not warranted. And, as the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not applicable. 4. Entitlement to service connection for a respiratory/pulmonary disability manifested by shortness of breath. The Veteran's STRs include a June 1982 AF Form 696 (Dental Patient Medical History) on which he checked that he had a history of asthma. There are no STRs noting chronic complaints or treatment for a disability manifested by shortness of breath, including owing to asthma. Post service, a July 2006 Semmes Murphey Neurologic & Spine Institute record reflects that the Veteran reported having "experienced asthma during his childhood and adolescence, but he has been symptom free since the age of 18. He denies any other pulmonary problems." VA clinical records note a diagnosis of well-controlled asthma, but no indication that it is related to the Veteran's service or a service-connected disability. A January 2015 VA pulmonary report addendum adds the Veteran had lung/adrenal lesions that were resolving. The examination report indicates he had a history of long-term cigarette smoking of greater than 50 pack years, and, after his release from active military service, he was employed by an oil refinery with frequent exposure to methyl-ethyl-ketone. The examiner found there was no evidence of chronic interstitial pulmonary fibrosis that would be seen in pulmonary asbestosis. The examiner also noted that the Veteran's resolving pulmonary nodular masses and disappearing adrenal lesions were "most likely caused by or a result of necrotizing granulomatous disease of unknown etiology, non-service-connected". While the Appellant-widow and Veteran may have had training in the medical field (nursing), the Board finds that the January 2015 opinion by a doctor who is trained in pulmonary/critical care, and who has provided adequate rationale based on the record, has more probative value than the opinions of the Appellant and Veteran. Moreover, any contention of a disability related to claimed in-service asbestos exposure lacks merit based on a lack of diagnostic evidence of interstitial pulmonary fibrosis or other disease associated with exposure to asbestos, a lack of a competent diagnosis of a diagnosis of asbestosis, and/or a lack of adequate discussion of the Veteran's smoking history and post-service employment. The most probative evidence is against finding that the Veteran had a respiratory, pulmonary, or other disability that was manifested by shortness of breath owing to his service or a service-connected disability. 5. Entitlement to service connection for an acquired psychiatric disability. In Clemons v. Shinseki, 23 Vet. App (2009), the Court held that an appellant's diagnoses arising from the same symptoms for which he is seeking benefits do not relate to entirely separate claims not yet filed by the appellant. Rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim he did submit. Based on the record as a whole, the Board has considered this claim broadly as for an acquired psychiatric disorder, including as secondary to a service-connected disability. An April 2004 VA clinical record shows the Veteran reported that, a few months earlier, he had been started on medication for anxiety and panic attacks. A June 2005 VA clinical record reflects a prior medical history of anxiety. It was noted that the Veteran had been started on Celexa and that, although he felt much better, he admits that he cries easily, has a decreased libido, and has high emotions. A July 2006 Semmes Murphey Neurologic & Spine Institute record shows the Veteran reported that, sometime in the late 1990s, he had first noticed the appearance of tremor in his hands; he did not seek treatment at the time, but it "was apparently during the same time frame that he began to experience episodes that were diagnosed as panic attacks." The evaluating clinician surmised that, for the Veteran's history of panic attacks, "in reviewing the VA records apparently there has been some suggestion that this might be related to post traumatic stress disorder, but I'm not certain whether this diagnosis has actually been made." A July 2007 VA neuropsychology record contains the opinion of the examiner in pertinent part as follows: . . . the patient has experienced ongoing symptoms of anxiety since 2004 that seem to be exacerbated by the diagnosis of PD [Parkinson's disease) last year. Specifically, he consistently worries/ruminates about his worsening health and the impact of this on his wife/family. He also has experienced increased irritability/emotional reactivity, problems with concentration, and increased tension as result. Despite that much of his present anxiety seems to be related to his health and future functioning, the pre-existence of anxiety symptoms prior to the worsening of his health from PD likely indicates that the PD diagnosis has served to exacerbate an underlying anxiety disorder. A December 2008 record confirms the Veteran had a diagnosis of major depressive disorder, in partial remission, for which he was on medication to treat. An October 2009 VA record shows the Veteran was taking medication for anxiety, but not for depression, and he reported not feeling depressed. It was noted he had a history of depression starting around age 30 (i.e., in 1974). A May 2014 DBQ contains the opinion of the examiner that the Veteran did not meet the Diagnostic and Statistical Manual for Mental Disorders (DSM) criteria for posttraumatic stress disorder (PTSD) according to either the DSM-IV or DSM-5. However, the examiner added the Veteran did meet the criteria for another mental disorder diagnosis namely, Other Specified Trauma and Stressor-Related Disorder. The Veteran gave a history of childhood abuse by his father, sexual abuse in service, witnessing traumatic events while serving aboard a ship near Vietnam, post-service trauma, feeling of inadequacy, and adjusting to major illness (an apparent reference to his Parkinson's disease). The examiner conceded that it was a "complex clinical presentation" and that the etiology of the Veteran's "Other Specified Trauma and Stressor-Related Disorder" was multifactorial. She further explained, in pertinent part, as follows: Given the complexity of the clinical presentation it is difficult, if not impossible, to establish a nexus between other stressors and current symptoms. Accordingly, it is not possible to resolve the issue of relationship to military service, if any, without resorting to mere speculation. Given the fairly sparse personnel files, however, additional information could serve to modify this opinion. A September 2014 private record reflects that the Veteran was experiencing nightly hallucinations or vivid dreams and admitted to some "mild depressive symptomatology, stating he often feels 'useless'". A May 2015 VA psychiatry consult shows the Veteran spontaneously brought up frequent depression and passive suicidal ideation. He was assessed with "medication-induced psychiatric toxicity", including visual hallucinations, delusions, and occasional paranoid ideation. A June 2015 VA psychology record indicates the Veteran stated that his physical illness had severely limited his mobility, causing a decline in his mood. He explained that his mood had been declining since receiving a diagnosis of Parkinson's disease in 2005, so some 10 years earlier. A June 2016 Methodist Le Bonheur Healthcare record explains the Veteran was otherwise healthy, besides Parkinson's. He was admitted to a medical facility after taking an overdose of medication. It was also noted that he "has [Parkinson's] and has intermittently threatened suicide." A March 2018 VA psychiatry record shows diagnoses that include depression, major neurocognitive disorder due to Parkinson's disease, and other specific trauma and stressor related disorder/PTSD. Additional records also dated in 2018 affirm the Appellant was concerned about the Veteran possibly attempting to commit suicide. The Appellant more recently testified during a February 2021 hearing before this Board that the Veteran was troubled by his service during the Vietnam war. (This hearing was before another Veterans Law Judge (other than the undersigned) concerning the issue of entitlement to service connection for the cause of the Veteran's death under the Appeals Modernization Act (AMA) review system.) The most probative evidence of record does not support a diagnosis of PTSD; however, the record does reflect that the Veteran's major physical limitations were due to his Parkinson's disease, that he felt useless, and that it is as likely as not that both his depression and anxiety increased due to his Parkinson's disease. Hence, resolving all reasonable doubt in the Appellant-widow's favor, the Board finds that service connection is warranted for an acquired psychiatric disorder including manifested by symptoms of depression and anxiety, since at least partly secondary to (meaning caused or aggravated by) the Parkinson's disease the Board already in turn determined in this decision is a service-connected disability. See, e.g., El-Amin v. Shinseki, 26 Vet. App. 136 (2013). 6. Entitlement to service connection for erectile dysfunction (ED) A July 2006 Semmes Murphey Neurologic & Spine Institute record shows the Veteran reported that, in approximately 2003, so some 3 years earlier, he had begun noticing some difficulty with ED. Also, by 2003, he already had been experiencing a hand tremor for several years. The examiner determined the Veteran had "no [then] current symptoms suggestive of pulmonary, renal, hematologic, endocrinologic, urologic, or cardiac dysfunction." An October 2006 Dr. Pfeiffer record (University of Tennessee, Department of Neurology) suspected the Veteran's erectile dysfunction was possibly secondary to his Parkinson's disease. Dr. Pfeiffer commented that the "fact that this has actually been present for approximately nine years might raise questions as to whether it is related to the Parkinson's disease or not." A March 2007 VA clinical record mentions the Veteran reported a low sex drive and poor erectile function that came prior to use of anti-depressant medication. While the Board is not a medical body or authority, it reasonably can glean from the evidence discussed that erectile dysfunction may be a manifestation of a physical disorder and/or a mental disorder. Even if the Veteran's Parkinson's disease and/or acquired psychiatric disability did not cause his erectile dysfunction, it still reasonably can be found that one, the other, or both, alternatively aggravated his erectile dysfunction. 38 C.F.R. § 3.310(b). As the Board has granted service connection for both Parkinson's disease and an acquired psychiatric disability, it therefore will resolve all reasonable doubt in the Appellant-widow's favor and grant service connection additionally for erectile dysfunction since secondary. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED