Citation Nr: 21035495 Decision Date: 06/09/21 Archive Date: 06/09/21 DOCKET NO. 20-05 426 DATE: June 9, 2021 ORDER New and material evidence having been received, the request to reopen a claim for service connection for a mental health disorder is granted. Service connection for diabetes mellitus type 2 (DMII) is granted. Service connection for AL amyloidosis is denied. Service connection for Parkinson's Disease (PD) is denied. REMANDED Service connection for a mental health disorder is remanded. Service connection for a left knee disorder is remanded. Service connection for a right knee disorder is remanded. FINDINGS OF FACT 1. The additional evidence received since an August 2013 final decision raises a reasonable possibility of substantiating the previously denied claim for service connection for a mental health disorder and it is reopened. 2. The Veteran has conceded exposure to herbicides while in-service and has been diagnosed with DMII. 3. There is no evidence of record which establishes that the Veteran has a diagnosis of AL amyloidosis or PD. CONCLUSIONS OF LAW 1. The criteria to reopen the claim for a mental health disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for service connection for DMII are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09. 3. The criteria for service connection for AL amyloidosis or PD are not met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.3.09. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1964 to December 1968 and from March 1980 to March 1981, with additional periods of service in the Reserves. The Veteran originally filed his claim for service connection for posttraumatic stress disorder (PTSD). However, pursuant to the Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Board has re-characterized the issue on appeal as entitlement to service connection for a mental health disorder. This will provide the most potentially favorable review of the Veteran's claim in keeping with the Court of Appeal for Veterans Claims' holding in Clemons. New Material Evidence Mental Health Disorder In an August 2013 rating decisions service connection was denied for a mental health disorder; the decision became final when the Veteran did not appeal. To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that its task is to first decide whether new material evidence has been received, as opposed to whether or not the evidence actually substantiates the Veteran's claim. Pertinent evidence added to the record since the final August 2013 rating decision includes medical records, statements, and the Veteran's February 2021 hearing testimony. Based on this newly added evidence, the Board finds that new and material evidence has been added to the record which relates to previously unestablished elements of the claim and the claim for service connection for a mental health disorder is reopened. Service Connection Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). DMII The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (the Vietnam Era), specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). Regulations create a presumption of service connection for certain diseases, including lung cancer, found to be associated with exposure to a herbicide agent such as that used in Agent Orange. See 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307(d), 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that herbicide exposure is established. In this matter, the Veteran has conceded exposure to herbicides. See March 2020 VA Memorandum. Additionally, the Veteran's private medical records show that he was diagnosed with DMII in December 2018. See December 2018 and March 2019 private medical records. As DMII is one of the conditions afforded presumptive service connection due to herbicide exposure and the Veteran has both conceded exposure to herbicide and a diagnosis of DMII, the Board finds that service connection is warranted on a presumptive basis. The Board is aware of an April 2020 VA examination which found that the Veteran did not meet the criteria for a diagnosis of DMII. However, that examination report did not consider the Veteran's December 2018 A1c test results which showed the Veteran met the criteria for a DMII diagnosis. As such, the Board does not afford the April 2020 VA examination any probative weight. Service connection for DMII is granted. Amyloidosis PD The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After review of the evidence of record, including the Veteran's February 2021 hearing testimony, the Board concludes that there is no evidence of record which shows that the Veteran has a diagnosis of AL amyloidosis or PD and has not had one at any time during the pendency of the claims or recent to the filing of the claims. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's VA and private medical records show that he has complained of and been treated for tremors, numbness in hands and feet, dizziness, and other symptoms. However, these symptoms have not been diagnosed as separate disorders or disabilities independent of specific medical causes. The Veteran's April 2021 private medical records show that he underwent a brain MRI and was confirmed to have essential tremors. The medical record specifically stated that the Veteran's symptoms were most consistent with sporadic essential tremor, unlikely to be PD. There is no other evidence of record which showed that the Veteran has a diagnosed disorder or disability of AL amyloidosis or PD. The Board acknowledges the Veteran and his wife's statements regarding his symptoms, including his February 2021 hearing testimony. But the Veteran did note in his February 2021 hearing that he did not have a diagnosis of AL amyloidosis or PD. Thus, while the Veteran believes he has AL amyloidosis or PD, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377, n.4 (Fed. Cir. 2007). The Board gives more probative weight to the competent medical evidence which includes medical records and private examination records which show no diagnosis of either AL amyloidosis or PD. Therefore, the preponderance of the evidence is against the granting of service connection for AL amyloidosis or PD. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Mental Health Disorder A July 2013 VA examination diagnosed the Veteran with major depressive disorder and alcohol dependence disorder (in remission). However, the examiner did not render an opinion on the etiology of the Veteran's diagnosed mental health disorders or the possible relation to his active duty service. The Board finds that a new examination is warranted. Bilateral Knees Upon review of the record, the Board notes that no examination of the Veteran's claimed bilateral knee condition has been afforded to the Veteran; remand is necessary as the low threshold for obtaining such an examination and medical opinion has been surpassed in this case. See 38U.S.C. §5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed mental health disorder. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's mental health disorder was incurred in, or due to, the Veteran's service. The examiner is asked to address a July 2013 VA examination which diagnosed the Veteran with major depressive disorder and alcohol dependence disorder. The Veteran and his wife's lay statements, including their February 2021 hearing testimony, regarding onset and continuity of symptomology should be recorded and considered. A rationale for all opinions must be provided. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's bilateral knee osteoarthritis. The claims file should be made available to the examiner for review. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed bilateral knee osteoarthritis was incurred in, or due to, the Veteran's service. The Veteran's service treatment records which indicate that he reported a trick or locked knee in December 1984 and August 1997 reports of medical history should be addressed. (Continued on the next page) The Veteran and his wife's lay statements, including their February 2021 hearing testimony, regarding onset and continuity of symptomology should be recorded and considered. A rationale for all opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.