Citation Nr: 21032237 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 14-40 355A DATE: May 26, 2021 ORDER Entitlement to service connection for ischemic heart disease is dismissed. Entitlement to an increased rating for bilateral hearing loss is dismissed. Entitlement to service connection for radiculopathy of the right lower extremity is dismissed. Entitlement to service connection for radiculopathy of the left lower extremity is dismissed. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. The application to reopen a previously denied claim of entitlement to service connection for a low back condition is dismissed. Service connection for a neurological condition, to include frontotemporal dementia and amyotrophic lateral sclerosis (FTD-ALS complex), is granted. Service connection for the cause of the Veteran's death is granted. FINDINGS OF FACT 1. In April 2021 correspondence, prior to the promulgation of this decision in the appeal, the appellant withdrew the claims for service connection for ischemic heart disease and bilateral lower extremity radiculopathy, increased ratings for bilateral hearing loss and PTSD and to reopen the claim for service connection for a low back condition. 2. The Veteran's death certificate indicates that he died in June 2012 with the cause of death listed as frontal lobe degeneration and Parkinson-like progressive motor degeneration. 3. The Veteran is presumed to have been exposed to herbicide agents while serving in Vietnam. 4. The Veteran's neurological condition is at least as likely as not related to service. 5. The cause of the Veteran's death is at least as likely as not related to the Veteran's neurological condition. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to service connection for ischemic heart disease are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to an increased rating for bilateral hearing loss are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for dismissal of entitlement to service connection for radiculopathy of the right lower extremity are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for dismissal of entitlement to service connection for radiculopathy of the left lower extremity are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for dismissal of entitlement to a rating in excess of 70 percent for PTSD are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The criteria for dismissal of the application to reopen a previously denied claim of entitlement to service connection for a low back condition are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The criteria for service connection for a neurological condition, to include FTD-ALS complex, are met. 38 U.S.C. §§ 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 8. The criteria for service connection for the cause of the Veteran's death are met. 38 U.S.C. §§ 1310, 5107; 38 C.F.R. §§ 3.102, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to July 1921, including service in the Republic of Vietnam. The Veteran died in June 2012. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012 and November 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was previously before the Board, in April 2019. At that time, the Board, among other things, denied the claims for service connection for a neurological condition and for service connection for the Veteran's cause of death. The appellant appealed to the Court of Appeals for Veterans Claims (CAVC), which vacated the April 2019 Board decision pursuant to a Joint Motion for Remand (JMR) entered into by the appellant and VA. The matter has returned to the Board for adjudication. Withdrawal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or his or her authorized representative. Id. Here, the appellant's representative submitted a written statement in April 2021 indicating that appellant wished to withdraw the appeal as to all claims except for the claims for service connection for a neurological condition and for the Veteran's cause of death. The April 2021 statement contained the Veteran and appellant's names, the claims file number and a specific indication that the appellant wished to withdraw all claims except for the claims for service connection for a neurological condition and the Veteran's cause of death. 38 C.F.R. § 19.55(b)(1); Hembree v. Wilkie, 33 Vet. App. 1, 6 (2020). The Board thus concludes that the appellant has withdrawn the appeals of the claims for service connection for ischemic heart disease and bilateral lower extremity radiculopathy, increased ratings for PTSD and bilateral hearing loss and to reopen the claim for service connection for a low back condition and there remain no allegations of errors of fact or law for appellate consideration for those claims. 38 U.S.C. § 7105(d). Accordingly, the Board does not have jurisdiction to review those issues and the appeals as to those claims are dismissed. Service Connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection may also be established presumptively for certain diseases listed in 38 C.F.R. § 3.309(e) for any veteran who was exposed to an herbicide agent as defined in 38 C.F.R. § 3.307(a)(6) during active duty service. Where, as here, a Veteran contends that a disability not found in 38 C.F.R. § 3.309(e) is related to exposure to herbicide agents, the Veteran may still present evidence to establish the nexus element on a direct, rather than a presumptive, basis. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 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. 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. Alemany v. Brown, 9 Vet. App. 518 (1996). FTD-ALS Complex The appellant contends that the Veteran's neurological condition, initially claimed as Parkinson's Disease and ALS, is a result of his exposure to herbicide agents. The record does not reflect that the Veteran was diagnosed with Parkinson's Disease or ALS. Rather, a December 2018 VHA opinion concluded that the Veteran's neurological condition "most likely carried a diagnosis of FTD-ALS complex." A March 2021 private medical opinion agreed with the diagnosis of FTD-ALS complex. As both opinions are based on thorough reviews of the relevant medical records and relevant medical literature, the Board finds them entitled to probative weight as to whether the Veteran had a neurological condition. See Rodriguez v. Peake, 22Vet. App.295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion.) The Board thus considers the claim for service connection for a neurological condition to include FTD-ALS complex. Clemons v. Shinseki, 23 Vet. App 1, 5 (2009) (claims should be considered for any diagnosis reasonable encompassed by the description and submissions, as well as information gathered by VA in support of the claims). Based on the foregoing, the appellant is able to establish the current disability element for service connection. The Veteran was presumed to have been exposed to herbicide agents based on his service in the Republic of Vietnam, however, FTD-ALS complex is not a condition considered to be caused by herbicide exposure on a presumptive basis. See 38 C.F.R. § 3.309(e). The remaining question is whether the Veteran's FTD-ALS complex was directly caused by his exposure to herbicide agents. A March 2021 private medical opinion submitted by the appellant concluded that the Veteran's herbicide exposure was the most likely cause of the Veteran's FTD-ALS complex. The private physician based his opinion on a review of the relevant records and explained that the Veteran had minimal risk factors for the development of FTD-ALS complex. The private physician disagreed with the suggestion of a genetic basis for the disease, explaining that although the Veteran's brother was diagnosed with ALS, a genetic connection required three or more first or second-degree relatives affected by ALS. The private physician also noted that the Veteran's brother was also a Vietnam Veteran, and that it was more likely that their shared exposure to herbicide agents accounted for their development of similar neurological disorders. The private physician cited relevant medical research, including studies that have occurred after the issuance of the December 2018 VA opinion, noting a link between the Veteran's condition and his exposure to herbicide agents. The Board finds the March 2021 opinion from the private physician is entitled to probative weight. The opinion is based on a review of the relevant records and medical literature and offers a sufficient rationale for the conclusion linking the Veteran's neurological condition to his herbicide exposure. Although a December 2018 VHA opinion offered a negative nexus opinion, that opinion was deemed inadequate by CAVC and is therefore not entitled to probative weight. As the preponderance of the evidence supports a finding that the Veteran's neurological condition was caused by his exposure to herbicide agents, the claim for service connection is granted. Service connection for the cause of the Veteran's death Service connection for cause of death may be awarded to a veteran's surviving spouse for death resulting from a service-connected disability or a disability related to service. 38 U.S.C. § 1310; 38 C.F.R. § 3.312. To establish service connection for the cause of the Veteran's death, the evidence must show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to cause death. The death of a veteran will be considered as having been due to a service-related disability when the evidence establishes that such disability was either the principal or the contributory cause of death. Id. Here, the Veteran's neurological condition is service connected as a result of this decision. The Veteran's death certificate lists frontal lobe degeneration and Parkinson like progressive motor degeneration as the cause of death. The March 2021 private medical opinion noted that the cause of death was a description of the Veteran's underlying neurodegenerative disease, now known to be FTD-ALS complex. The private physician also concluded that the Veteran's FTD-ALS complex was the immediate cause of the Veteran's death. The December 2018 VHA opinion also concluded that dementia with features of motor neuron disease did, more likely than not, materially contribute to the Veteran's death. The Board finds the opinions from the VHA examiner and the private physician are entitled to probative weight. Accordingly, the preponderance of the evidence supports a determination that service connection for the Veteran's cause of death is warranted, and the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.