Citation Nr: 22014436 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-62 828 DATE: March 12, 2022 ORDER Entitlement to service connection for Parkinson's disease of the right hand, to include as secondary to service-connected residuals of renal cancer, is denied. FINDING OF FACT The Veteran's right-hand Parkinson's disease was not related to his active service, and was not caused or aggravated by service-connected disability. CONCLUSION OF LAW The criteria for service connection for right-hand Parkinson's disease, to include as secondary to service-connected residuals of renal cancer, have not been met. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1956 to December 1959. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). In April 2019, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) who is no longer at the Board. A transcript of that hearing has been associated with the claims file. The Veteran died in March 2020 and his spouse has been substituted as the appellant for purposes of prosecuting the Veteran's claims. See 38 U.S.C. § 5121A. In February 2021 and June 2021, the claim was remanded by the Board to the agency of original jurisdiction (AOJ) for further development. Most recently, in October 2021, the claim was remanded by the Board to the AOJ for further development. After accomplishing the above, the AOJ continued to deny the appellant's claim (as reflected in a November 2021 supplemental statement of the case (SSOC)). In January 2022, the appellant was notified about the lack of availability of the VLJ who had conducted the April 2019 hearing and given an option for a new hearing. She did not respond with a new hearing request. Entitlement to service connection for right-hand Parkinson's disease Service connection is warranted for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). For organic diseases of the nervous system, such as Parkinson's disease, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for conditions claimed to be due to exposure to ionizing radiation in service can be established in any of three different ways. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 21 (1997). First, service connection may be presumptively established for specific diseases that are manifest in radiation-exposed veterans. 38 U.S.C. § 1112(c); 38 C.F.R. § 3.309(d). A "radiation-exposed veteran" is defined by 38 C.F.R. § 3.309(d)(3) as a veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device. 38 C.F.R. § 3.309(d)(3)(ii)(A). Diseases presumptively service connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract; bronchiolo-alveolar carcinoma; cancer of the bone; cancer of the brain; cancer of the colon; cancer of the lung; and cancer of the ovary. 38 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d). Second, if a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), a veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation. 38 C.F.R. § 3.311(b)(2). Parkinson's is not listed as a radiogenic disease. Under the special development procedures in § 3.311(a), dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311(a)(2). In all other claims, 38 C.F.R. § 3.311(a) requires that a request be made for any available records concerning the Veteran's exposure to radiation. These records normally include, but may not be limited to, the Veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained; service medical records; and other records which may contain information pertaining to the Veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and, (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the VA Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the VA Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the VA Under Secretary of Health. 38 C.F.R. § 3.311(b), (c)(1). After referral, the Under Secretary for Benefits must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether there is "no reasonable possibility" that the disease resulted from such exposure. 38 C.F.R. § 3.311(c)(1). Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Id. The Veteran contended that his right-hand Parkinson's disease is due to exposure to Benzene while cleaning the ship deck of the USS Boxer and/or from exposure to ionizing radiation during Operation Hardtack. Later, the appellant's representative asserted an additional theory of entitlement: the Veteran's service-connected residuals of renal cancer caused/aggravated his Parkinson's disease. As noted in the previous Board remands, an adequate medical opinion was needed to address the etiology of the Veteran's Parkinson's disease, to include as due to in-service military environmental exposure and on a secondary basis. Pursuant to the October 2021 Board remand, VA medical opinion was obtained in November 2021 to address the relationship between the Veteran's service-connected residuals of renal cancer and his right-hand Parkinson's disease. The examiner opined that the Veteran's right-hand Parkinson's disease was not related to his service-connected residuals of renal cancer. As rationale, she stated that she had reviewed the article referenced by the appellant in May 2021, indicating a possible relationship between kidney cancer and Parkinson's disease. The examiner noted that the study seemed to indicate that men with Parkinson's disease may be at increased risk of developing cancer. However, she indicated that this case "is asking about is whether the cancer itself caused or aggravated the [P]arkinson[']s disease, and this evidence is looking at the opposite relationship." The examiner also noted "that there are numerous factors in the development of [P]arkinson[']s disease, however there is no causative evidence to suggest that kidney cancer will cause or lead to the development of [P]arkinson[']s disease." The examiner also stated that treatment options for cancer chemotherapy "can cause symptoms that mimic [P]arkinson[']s. [H]owever these are noted to resolve typically after the treatment [h]as ended." Notably, she emphasized that "the evidence does not suggest that treatment will permanently aggravate the [P]arkinson[']s disease itself." It is acknowledged that the aggravation by a service-connected disability need not be permanent. Here, any aggravation (permanent or transitory) results in symptomology that appears to mimic Parkinson's disease but is not Parkinson's disease. Ultimately, the examiner concluded that the evidence does not support a finding that the Veteran's "kidney cancer caused or led to the development of [P]arkinson[']s disease and as well does not show aggravation of the condition, with treatment for kidney condition." The Board finds that the November 2021 examiner's opinions is probative because it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The November 2021 VA examiner's opinion read as a whole shows that the Veteran's right-hand Parkinson's disease is in no way medically related to his service-connected renal cancer residuals. Thus, she discounted any causal effect from the Veteran's right-hand Parkinson's disease to his service-connected renal cancer residuals. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read and in the context of the evidence of record). Additionally, the examiner's comments also foreclose the possibility of aggravation. To the extent the Veteran asserted a nexus between his right-hand Parkinson's and his service-connected renal cancer residuals, this issue is a complex medical question since it involves the cause of an internal disease with multiple possible causal factors. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons are not competent to address complex medical matters). Since the Veteran was not competent to report a nexus, any such nexus reports from him have no probative value. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Board also notes that the Veteran's Parkinson's disease was first diagnosed in 2014, over 50 years after discharge from service. Accordingly, the Board finds that symptoms of Parkinson's were not chronic in service and continuous after service separation. Because Parkinson's disease did not manifest to a compensable degree in service or within one year of service separation, the Board finds that the presumption of service connection under 38 C.F.R. § 3.303 is not warranted. The Board has also considered entitlement to service connection on a direct basis. The Veteran's service treatment records (STRs) do not contain any complaints, diagnoses, or treatment of Parkinson's disease or any related symptoms. Post-service, the Veteran was diagnosed with right-hand Parkinson's disease in April 2014. The Board notes the February 2016 private medical opinion from Dr. C. opining that the Veteran's right-hand Parkinson's disease was at least as likely as not related to in-service Benzene exposure. However, Dr. C. did not provide a rationale in support of his conclusion, and thus Board affords no probative weight to his opinion. In addition, in August 2016, Dr. G. stated that the Veteran believed that his Parkinson's disease was caused by his in-service Benzene exposure. However, there is no rationale in support of this contention, and the opinion is afforded no probative weight. VA medical opinion dated in February 2021 opined that the Veteran's right-hand Parkinson's disease was less likely than not related to exposure to Benzene or ionizing radiation. As rationale, she stated that she had reviewed the evidence and peer-reviewed medical literature. The examiner found no evidence of any medical relationship between Benzene and Parkinson's disease. In addition, she stated that there was no statistical significance between ionizing radiation and development of Parkinson's disease. The examiner noted that the Veteran's dosimeter readings of 0.720 REM was below the acceptable levels of exposure on dosimeter readings and did not appear to be above the safe limit for exposure per Department of Labor listed levels. The examiner also indicated that scientific studies have shown an association between cancer and radiation dose levels of about 10 REM or greater, with the cancer risk increasing as the radiation dose increases. Still, these studies did not evidence any statistical significance between ionizing radiation and the onset of Parkinson's disease. Upon review of the relevant evidence of record, the Board finds that the weight of the evidence does not support direct service connection for right-hand Parkinson's disease. The Board finds that the February 2021 examiner's opinion is probative because it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, supra. Although the appellant and the Veteran contended that the Veteran's right-hand Parkinson's disease was related to his active service, to include as due to military environmental exposure, they have submitted no competent and probative medical evidence or opinions to corroborate such a contention. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The opinion of the Veteran and the appellant are not competent to provide the requisite etiology of Parkinson's disease, because such a determination requires medical expertise. As a lay person, the Veteran was considered competent to report what comes to him through his senses, but he lacked the medical training and expertise to provide a medical opinion as to the etiology of his right-hand Parkinson's disease. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran's opinion on its own is insufficient to provide the requisite nexus between his condition, to include as due to in-service military environmental exposure, and his active service. Therefore, the lay statements regarding the Veteran's Parkinson's disease being related to service are not considered to be competent nexus evidence, as the Veteran was not medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to etiology. In addition, there is no evidence of complaints related to, treatment for, or diagnoses of the disability during active service, and there is no indication of symptoms, treatment, or diagnoses for the disability until decades after service separation. The evidence of record does not relate right-hand Parkinson's disease to service. As such, the Board finds that the persuasive evidence of records indicates that service connection for right-hand Parkinson's disease is not warranted. For the reasons discussed above, the evidence is against the claim for service connection for right-hand Parkinson's disease. Thus, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kovacs, 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.