Citation Nr: 21031701 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 20-11 928 DATE: May 24, 2021 ORDER Service connection for ischemic heart disease as due to herbicide exposure is granted. Service connection for Parkinson's disease as due to herbicide exposure is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected Parkinson's disease, is remanded. FINDINGS OF FACT 1. The Veteran went ashore in Vietnam during his out processing in September 1970, and is presumed to have been exposed to herbicide agents. 2. Ischemic heart disease, including coronary artery disease, and Parkinson's disease are listed among the diseases presumptively associated with exposure to certain herbicide agents under applicable regulations. 3. The Veteran's current diagnoses of ischemic heart disease and Parkinson's disease manifested to a compensable degree after separation from active service. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for ischemic heart disease as due to herbicide exposure have been satisfied. 38 U.S.C. §§ 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309(e) (2020). 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for Parkinson's disease as due to herbicide exposure have been satisfied. 38 U.S.C. §§ 1116, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1968 to October 1970 and in the United States Army from September 1979 to July 1990 and August 1990 to November 1993. With regard to the claim of entitlement to service connection for ischemic heart disease, relevant service personnel records were obtained and associated with the record in 2015, which were not associated with the claims file when VA last decided the issue in the February 2007 VA rating decision. Accordingly, the claim will be adjudicated on a de novo basis rather than on the basis of whether new and material evidence has been received. See 38 C.F.R. § 3.156(c) (2020). 1. Entitlement to service connection for ischemic heart disease 2. Entitlement to service connection for Parkinson's disease If a veteran was exposed to an herbicide agent during active military, naval, or air service, a specified list of diseases, to include ischemic heart disease (including coronary artery disease) and Parkinson's disease, shall be service connected if manifests to a compensable degree any time after service. See 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6)(ii); 3.309(e); McCartt v. West, 12 Vet. App. 164, 166 (1999). During the course of the appeal, the Veteran asserted in a May 2011 VA Form 21-4138 that while assigned to the fleet air support unit and transitioning back to San Francisco, California for out processing he went ashore in Da Nang, Vietnam in September 1970. The Veteran reiterated this contention in July 2014 and August 2015 VA Form 21-4138, January 2017 and March 2019 statements, and at the May 2021 Board hearing. In March 2019, the Veteran submitted a statement from T. G. who reported being assigned and stationed with the Veteran in the fleet air support unit stationed in Da Nang, Vietnam in September 1970. It was explained they were both in the process of being discharged from the Navy and this was their first step in the process of out processing. Review of service personnel records shows the Veteran's periods of foreign service include from May 1970 to October 1970, which was during the Vietnam Era. See 38 U.S.C. § 101(29)(B) (Vietnam Era began on August 5, 1964 and ended on May 7, 1975 in all other). Moreover, The Board finds that the Veteran is competent to report that he went ashore in Vietnam during his out processing in September 1970, and his reports appear consistent throughout the appeal period and supported by the lay assertions of T. G. who was also on the trip. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). As a result, the Board finds the Veteran's lay assertions regarding his service during the Vietnam Era are credible. Based on such findings, the Board presumes that the Veteran had herbicide exposure from his time in Vietnam. Review of the evidentiary record demonstrates the Veteran has a post-service diagnosis of coronary artery disease with continuous medication required, thus manifested to a compensable degree after separation from active service. Such findings are shown in a July 2014 private examination report for ischemic heart disease. Review of the evidentiary record also demonstrates the Veteran has a post-service diagnosis of Parkinson's disease manifested to a compensable degree after separation from active service. Such findings are shown in a June 2014 private examination report for Parkinson's disease and July 2017 private treatment record. After resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has presumed in-service herbicide exposure and current disabilities of ischemic heart disease and Parkinson's disease that manifested to a compensable degree. As a result, service connection is warranted for ischemic heart disease and Parkinson's disease on a presumptive basis, and there is no probative contrary medical opinion of record. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.307(a)(6), 3.309(e). REASONS FOR REMAND Entitlement to service connection for sleep apnea, to include as secondary to service-connected Parkinson's disease Review of private and VA treatment records shows a diagnosis for sleep apnea, as noted in May 2012, September 2012, December 2014, and July 2017. The Veteran was also afforded a VA examination for sleep apnea in September 2018. Following the clinical evaluation, the examiner rendered a diagnosis of sleep disorder breathing mild to moderate sleep apnea and explained why it is less likely than not caused by the Veteran's Parkinson's disease. In light of the Veteran's diagnosis of sleep apnea during the appeal period and his now service-connected Parkinson's disease, additional development for a VA medical opinion is needed to determine the etiology of his sleep apnea disorder on a secondary basis for aggravation. See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.310 (2020); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following actions: 1. Provide the Veteran's claims file to an appropriate clinician to provide an opinion regarding the Veteran's genitourinary system disorder. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's sleep apnea was aggravated beyond its natural progression by his service-connected Parkinson's disease. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.