Citation Nr: 22013231 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-35 604 DATE: March 9, 2022 ORDER Entitlement to service connection for Parkinsonism (claimed as vertigo/balance problems) is granted. FINDING OF FACT The Veteran served in the Republic of Vietnam during the Vietnam Era and he has a current diagnosis of Parkinsonism which is characterized by multiple symptoms including impairment of balance, and the evidence is insufficient to rebut the presumption that the Veteran's Parkinsonism is related to his in-service exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for Parkinsonism (claimed as vertigo/balance problems) have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; 116 P.L. 283. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Air Force from August 11, 1965, to August 28, 1965, and in the Navy from October 1968 to November 1974, with service in the Reserves through September 1994. The record shows that he served in the Republic of Vietnam, and it has been conceded that he was exposed to herbicides. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2016 and July 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2020 Board Hearing. The claims file contains a transcript of the hearing. Most recently, the Board denied the above-listed claim in a December 2020 Board Decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), and the CAVC issued an order granting the parties' February 2021 Joint Motion for Partial Remand (JMPR) to set aside the December 2020 Board decision and remanded the case back to the Board for compliance with the JMPR. The parties agreed in the February 2021 JMPR that the Board should have consider "all of the evidence of record in accordance with Clemons and discuss whether the Appellant may be entitled to service connection on this basis given that his current diagnosis of Parkinsonism has been shown to be related to his documented symptomatology of balance problems." In the July 2020 and December 2020 Board decisions, the Board noted that the RO had characterized the claim on appeal as "vertigo claimed as balance problems." The Board had also noted that the Veteran and his representatives were notified of this interpretation of the claim and that, if he intended to seek service connection for Parkinson's disease or Parkinsonism, he should file an explicit claim for that condition. Thereafter, the record was developed to address the claim of entitlement to service connection for vertigo and, importantly, at the March 2020 Board Hearing, the Veteran and his representative did not discuss his Parkinsonism and expressly based the appeal with respect to vertigo on his balance difficulties due to his back condition and numbness in his feet and/or legs. See March 2020 Board Hearing Tr. at 7-9 ("I think [the vertigo is] due to the back injury and the situation with the legs..."; "Certainly for the time that my left foot goes numb [my] balance is worse."). Under these circumstances, the Board reasonably construed the claim on appeal as limited to vertigo and balance problems related to his back and legs given the arguments and evidence at the time of the prior Board decisions, particularly including the Veteran's and his representative's statements at the Board hearing. However, the evidence and arguments before the Board are now different. Given subsequent developments, including the Veteran's arguments on appeal (explicitly linking his claim to Parkinsonism), concessions by the Secretary in the JMPR, and additional medical evidence linking his balance issues to Parkinsonism, the Board finds a reevaluation of the scope of the claim in the context of all of the evidence of record, leads to a conclusion his claim should be interpreted to include a claim of entitlement to service connection for Parkinsonism. See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) ("the Board is required to address all claims reasonably raised in the Appellant's Substantive Appeal and in all of his documents and oral testimony submitted prior to the Board's decision"). The Veteran's initial claim in this appeal was for "Balance Agent Orange." November 2015 VA Form 21-526EZ; see also June 2017 VA Form 21-526EZ (seeking, in relevant part, service connection for: "Neuropathy Agent Orange / Balance"). The Board previously found and the parties noted in the February 2021 JMPR that the Veteran has been diagnosed with Parkinsonism and at least some of his impaired balance and neurological issues are a result of this condition. Because his claim was for a symptom "balance" rather than a specific medical condition or even specific body part, the claim reasonably encompasses the condition(s) revealed by the record to have caused that symptom. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (holding that the scope of a claim is based on the claimant's reasonable expectations and includes any alternative diagnoses that contemplate the claimed symptoms). A review of (mostly unreported) Court decisions applying Clemons reveals that the Court typically finds claims should be encompassed to include diagnosed conditions resulting in the claimed symptoms, but should not be construed to encompass different conditions affecting the same general system (e.g., claimed "hypertension" versus various other cardiovascular conditions) or similar conditions that affect different body parts (e.g., a claim for a left arm disability does not reasonably include a claim for a similar right arm disability). See, e.g., DeLisio v. Shinseki, 25 Vet. App. 45, 55 (2011) (discussing several cases). Because here the Veteran's claim was only for a symptom "balance" Clemons dictates, on the current record, that the diagnosis that is determined to be responsible for that symptom, namely Parkinsonism, should be encompassed within the claim. This resolution of the issue is further support by the uniquely pro-claimant principles underly the veterans' benefits system. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013); Evans v. Shinseki, 25 Vet. App. 7, 14 (2011) (stating that the VA system is "veteran-friendly" and "non-adversarial"); Kouvaris v. Shinseki, 22 Vet. App. 377, 381 (2009) (noting that the veterans' benefits system is a "veteran-friendly" system); see also Shinseki v. Sanders, 556 U.S. 396, 412 (2009) ("Congress has expressed special solicitude for the veterans' cause, the adjudicatory process is not truly adversarial"). The pro-claimant nature of the system is such that VA has an affirmative obligation to grant "every benefit that can be supported in law." 38 C.F.R. § 3.103 (a) ("it is the obligation of VA to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government."); 38 C.F.R. § 3.102 ("when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin or any other point, such doubt will be resolved in favor of the claimant." (emphasis added)); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). These principles are especially pertinent here where the record clearly establishes a diagnosis of Parkinsonism, VA has conceded exposure to herbicide agents (e.g., Agent Orange), and there has been a change in the law subsequent to the December 2020 Board decision such that the controlling statutes now provide that Parkinsonism is subject to presumptive service connection. Moreover, although the Board is expanding and recharacterizing the claim to reflect the developments subsequent to the December 2020 Board Decision, the Board will not remand the matter to the AOJ for adjudication. Rather, the claim is on appeal and the record is clear that it may be granted. As noted, the facts and the law are plain in this case. The claim has been advanced on the docket making urgency especially pertinent here. Remand would serve no beneficial purpose for the Veteran, but would merely delay his receipt of benefits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. June 18, 2015) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."); see also Herndon v. Principi, 311 F.3d 1121, 1124 (Fed. Cir. 2002) (holding statement of the case need not specifically list an issue to be adequate, particularly where the Board must liberally construe the arguments set forth in a veteran's appeal); Bernard v. Brown, 4 Vet. App. 384, 390-91 (1993) (holding that the Board has authority "to decide all questions presented on the record before it that were necessary to its decision on the matter"); Shinseki v. Sanders, 556 U.S. 396, 407-11 (2009) (applying harmless error analysis in context of veterans benefit law). While the record contains evidence not yet considered by the agency of original jurisdiction (AOJ), the claim of entitlement to service connection for Parkinsonism may be granted on the current record. Therefore, the Board may proceed to the merits. See 38 C.F.R. § 20.1305(c). The Veteran contends that he has balance issues that are due to Parkinsonism. See February 2022 Appellant's Brief. The Board concludes that the Veteran has a current disability consisting of Parkinsonism which affects his balance and his Parkinsonism is related to his conceded exposure to herbicide agents during his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Board notes that there is not an alternative diagnosis other than, as the Veteran has claimed, peripheral neuropathy that may contribute to the Veteran's balance impairment. The claims of entitlement to service connection for peripheral neuropathy of the lower extremities were denied and the Veteran explicitly abandoned those appeals before the Court. See February 2021 JMPR at 2 ("Appellant is not challenging the Board's denial of entitlement to service connection for bilateral lower extremity neuropathy..."). Because the evidence is against finding any underlying diagnosis other than peripheral neuropathy and Parkinsonism that contribute to or cause the Veteran's balance impairment, the current claim has been recharacterized to refer to the underlying diagnosis of Parkinsonism rather than the descriptive terms "vertigo" and "balance." As discussed in the July 2020 Board Remand, December 2020 Board Decision, and the February 2021 JMPR, the Veteran has been diagnosed with Parkinsonism. In addition, the record now includes a March 2021 VA examination which also diagnoses Parkinsonism and notes it is characterized, in part, by moderate balance impairment. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The Veteran had service in Vietnam during the Vietnam era, which, as previously noted, VA has conceded. Therefore, he is presumed to have been exposed to one of the relevant herbicide agents. See 38 U.S.C. § 1116(f) (there is a rebuttable presumption of herbicide exposure in the case of veterans who served in Vietnam); see also 38 C.F.R. § 3.307(a)(6)(iii) (presumption for Vietnam veterans who have one of the conditions listed in 38 C.F.R. § 3.309(e)). The diseases presumptively associated with herbicide exposure include Parkinson's disease but the regulations do not yet include Parkinsonism. 38 C.F.R. § 3.309(e). On January 1, 2021, Congress enacted the William M. Thornberry National Defense Authorization Act for Fiscal Year 2021 which contained a provision amending the statutory list of diseases for which there is a presumption of service connection for veterans who served in the Republic of Vietnam. See 116 P.L. 283, H.R. 6395, 134 Stat. 3388. As a result of this change in the law, Parkinsonism is included by statute on the list of diseases for which there is a presumption of service connection for veterans who served in the Republic of Vietnam. 38 U.S.C. § 1116(a)(2)(I). Therefore, the record establishes that the Veteran meets all the criteria to qualify for the presumption in favor of service connection for Parkinsonism. There is no evidence to rebut the presumption. Consequently, upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current Parkinsonism is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for Parkinsonism is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.