Citation Nr: 1310998 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-32 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for Parkinson's disease (previously adjudicated as Parkinson's type tremor), to include as due to in-service chemical exposure. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1978 to May 1999. This matter is before the Board of Veterans' Appeals (the Board) on appeal of September 2007 and February 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2007, the RO received the Veteran's service connection claim for Parkinson's disease. The RO characterized this claim as one for a Parkinson's type tremor, and denied it in the above-referenced September 2007 rating decision. Within one year, the Veteran submitted new and material medical evidence relevant to his claim. The RO appropriately considered the evidence as having been filed in connection with the Veteran's original claim, as per the provisions of 38 C.F.R. § 3.156(b) (2012). The RO then denied the Veteran's claim for a second time in the above-referenced February 2009 rating decision. The Veteran disagreed with the RO's determination, and perfected an appeal as to this issue. In November 2012, the Veteran testified at a personal hearing conducted via videoconferencing equipment, which was chaired by the undersigned. A transcript of that hearing has been associated with the Veteran's VA claims folder. At that hearing, the undersigned afforded the Veteran an additional sixty days to submit relevant evidence in support of his claim. The Veteran did so in December 2012, and waived initial review of such evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304 (2012). The Board notes that the Veteran also changed his representative at the November 2012 hearing. Indeed, the Veteran's current representative submitted a completed VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) to VA, signed by the Veteran, on the day of the hearing. In February 2013, the Board solicited an expert medical opinion from a physician with the Veterans Health Administration (VHA) concerning the etiology of the Veteran's Parkinson's disease. In March 2013, the Board received the requested VHA opinion from Dr. K.B., and the opinion has been associated with the Veteran's claims folder. The Veteran need not be afforded an opportunity to respond to this expert medical opinion, as the Board is granting the benefit sought on appeal herein. FINDING OF FACT The evidence of record favors a finding that the Veteran's Parkinson's disease is causally related to the Veteran's in-service chemical exposures. CONCLUSION OF LAW Service connection for Parkinson's disease is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the Veteran's service connection claim for Parkinson's disease given the favorable nature of the Board's decision. II. Legal Criteria and Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish service connection a claimant must generally show: "(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). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In essence, the Veteran contends that he developed Parkinson's disease as a direct result of in-service exposure to chemicals and pesticides. In particular, the Veteran asserts that he was exposed to sodium hypochlorite (HTH) while serving as a plumbing technician in Micronesia in 1987, and to the pesticide Malathion while serving with a sanitation support team in Guantanamo Bay, Cuba in 1994 and 1995. It is undisputed that the Veteran currently has Parkinson's disease. Indeed, the Veteran sought treatment from VA for tremors in December 2006, and upon examination, a VA physician diagnosed the Veteran with "Parkinson's disease manifested by rigidity in facial muscles and in the right upper extremity and right lower extremity with characteristic resting alternating Parkinsonian tremor noted particularly in the right upper extremity." See the Veteran's December 6, 2006 VA Neurology Consultation. Subsequently, a September 2007 VA examiner also diagnosed the Veteran with "Parkinson's type tremor." Most recently, in March 2013, the VHA medical expert, Dr. K.B., confirmed after review of the Veteran's medical records that he had "no doubt" that the Veteran had Parkinson's disease. As such, a present disability has been shown. It is also undisputed that the Veteran had in-service chemical exposure to the pesticide Malathion. Indeed, a January 1995 in-service treatment record confirms that the Veteran was, at least on one occasion, doused with Malathion while serving in Cuba, just prior to getting the flu. See the Veteran's January 31, 1995 Chronological Record of Medical Care. In addition, the Veteran has competently stated that contractors in Cuba sprayed the pesticide each day to control the banana rat and mosquito population, and that he would frequently inhale the pesticide through opened windows and cracked walls of his housing. See the Veteran's January 25, 2007 typewritten statement, page 1. Notably, while in service, the Veteran documented this exposure to bug spraying on his January 31, 1995 treatment report, referenced immediately above. With respect to HTH exposure, the Veteran's service records also demonstrate that the Veteran served in Micronesia in 1987 as a plumbing technician, and that he was responsible for maintaining and operating the water and sewage distribution systems for his civic action team. He was also required to deliver potable water to state and local government offices, local villages, and businesses. See the Veteran's January 15, 1988 Performance Evaluation. In January 2007, the Veteran stated that he had to purify water at least 500 times during his deployment, and when doing so, he had to scoop large amounts of HTH into the processing machines. He asserted that he inhaled the chemical during every water processing. See the Veteran's January 25, 2007 typewritten statement, page 2. The Veteran is certainly competent to attest to his job duties while serving on active duty, as well as to the circumstances within which he believes he was exposed to chemicals. See 38 C.F.R. § 3.159(a)(2). In light of the fact that the evidence clearly confirms that Veteran worked in areas of Cuba where Malathion was sprayed, and on one occasion was physically doused with the pesticide, and in light of the Veteran's documented duties in Micronesia as a plumbing technician (which included purifying and delivering potable water), the Board finds no reason to doubt that the Veteran was in fact exposed to Malathion and water purifying chemicals such as HTH in service as he so describes. Thus, an in-service disease or injury has been shown. The key question at issue in this case is whether the Veteran's current Parkinson's disease is etiologically related to the in-service chemical exposures described above. There are multiple medical opinions of record addressing this matter. Notably, in September 2007, a VA examiner reviewed the Veteran's medical history, and upon examination of the Veteran, simply could not determine whether the Veteran's in-service exposure to chemicals was at least as likely as not a contributing factor to the onset of his Parkinson's disease without resorting to speculation. The VA examiner provided no further analysis or rationale as to why this was the case. Without explanation as to why an opinion could not be rendered, the September 2007 VA examiner's conclusion essentially amounts to "non-evidence" that weighs neither for nor against the claim. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The Veteran also submitted the opinions of two of his treating physicians, who both suggested that the Veteran's chemical exposures could have contributed to the development of his Parkinson's disease. See the July 2, 2008 opinion of VA neurologist Dr. M.C. (noting that the Veteran had heavy exposure to Malathion while serving in Cuba, and that "it is possible tha[t] this exposure may have played a role in the development of Parkinsonism); see also the November 29, 2012 opinion of the Veteran's private physician, Dr. B.S. (indicating his belief that "[i]t is quite possible that his Malathion[] exposure contributed to him developing Parkinson's Disease"). Unfortunately, both of these medical opinions are couched in terms of possibility, rather than probability, and are therefore too general or speculative to support the Veteran's claim in and of themselves. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that a medical opinion that stated "may" also implied "may not" and was therefore speculative); Morris v. West, 13 Vet. App. 94, 97 (1999) (finding diagnosis of "possibly" suffering from schizophrenia to be speculative). Additionally, neither Dr. M.C. nor Dr. B.S. provided any supporting rationale for their respective opinions. The Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (stating that Board may not assess probative value of "a mere conclusion by a medical doctor"). The Board recognizes that the Veteran also submitted medical treatise evidence suggestive of a possible link between exposure to certain pesticides and the development of Parkinson's disease. Significantly, this evidence is too general to support a finding that a relationship exists between this Veteran's in-service chemical exposure and his current Parkinson's disability. Based on the inadequate medical opinion evidence described above, the Board solicited an expert medical opinion from the VHA in February 2013 addressing the etiology of the Veteran's Parkinson's disease. In a March 2013 Memorandum, VHA neurologist Dr. K.B. reviewed the evidence of record, confirmed the Veteran's diagnosis of Parkinson's disease, and pertinently opined that it was "at least as likely as not" that the Veteran's in-service chemical exposures were a contributing factor to the onset of his Parkinson's disease. Although Dr. K.B. did not provide a detailed explanation as to how such a causal relationship is medically possible, he did note that the chemicals sodium hypochlorite (HTH) and Malathion "have been shown on epidemiological[] studies to be associated with Parkinson's disease." More specific to the Veteran's own personal disability picture, Dr. K.B. also found it convincing that the Veteran did not have a family history of Parkinson's disease. See the March 11, 2013 Memorandum from Dr. K.B. Thus, with the addition of the expert medical opinion of Dr. K.B., the medical evidence of record now includes an uncontradicted, positive and nonspeculative link between the Veteran's current Parkinson's disease and his in-service exposure to the chemicals HTC and Malathion. Dr. K.B. supported his opinion with sufficient clinical rationale, and the Board accordingly finds his expert opinion to be highly probative. As such, a nexus or relationship has been shown. Because all elements of the Veteran's service connection claim for Parkinson's disease are met, the benefit sought on appeal is allowed. (CONTINUED ON NEXT PAGE) ORDER Service connection for Parkinson's disease (to include Parkinson's type tremor) is granted. ____________________________________________ S. Heneks Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs