Citation Nr: 1451243 Decision Date: 11/19/14 Archive Date: 11/26/14 DOCKET NO. 12-14 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for Parkinson's disease. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to September 1969 and from April 1973 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that decision, the RO denied entitlement to service connection for Parkinson's disease. The Veteran testified before the undersigned at a June 2014 videoconference hearing at the RO. A transcript of the hearing has been associated with the file. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2014) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disabilities. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT Resolving all doubt in the Veteran's favor, Parkinson's disease is related to service. CONCLUSION OF LAW Parkinson's disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). As the Board is granting the claim of service connection for Parkinson's disease, the claim is substantiated and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the present case, a February 2012 VA examination report includes a diagnosis of Parkinson's disease. Thus, current Parkinson's disease has been demonstrated. The Veteran contends that his Parkinson's disease is related to exposure to trichloroethylene (TCE) in service. Specifically, he claims that he used cleaning solvents containing TCE on numerous occasions in service while performing maintenance on radio and other communication equipment. He has contended that he was not provided with any protective equipment/clothing while using such chemicals. In support of his contentions, the Veteran has submitted various articles which explain that TCE has been used in the military and that scientific studies have shown a relationship between prolonged exposure to TCE and the later development of Parkinson's disease/Parkinsonism. He also submitted a May 2011 letter from a fellow serviceman who explained that he was stationed at Wakkanai Air Force Base from July 1961 to July 1964 and that he and the Veteran were both in the same electronic repair group during part of that time period. While performing repairs on various pieces of electronic equipment, TCE was commonly used to clean and wash mechanical parts. Personal protective equipment such as gloves and breathing/eye protection was not required while using the chemical. The serviceman specifically indicated that he had observed the Veteran using TCE on various occasions while making electronic repairs at Wakkanai. The Veteran's service personnel records indicate that his military occupational specialty was a ground radio, communication equipment repairman and that he was stationed at Wakkanai Air Force Base from April 1963 to July 1964. During that time, he maintained electronic equipment. He is competent to report in-service use of cleaning solvents containing TCE without the use of personal protective equipment. Moreover, there is nothing to explicitly contradict his reports, they are not inconsistent with the evidence of record and the circumstances of his service, and a fellow serviceman has indicated that he personally witnessed the Veteran's use of chemicals containing TCE in service. Hence, the Veteran's reports of in-service TCE exposure are credible and such exposure is conceded. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). There are conflicting medical opinions as to whether the Veteran's current Parkinson's disease is related to TCE exposure in service. The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994). A May 2008 VA primary care provider clinic note and VA neurology consultation notes dated in May and September 2008 and February 2009 include diagnoses of Parkinson's disease and opinions from the treating physicians that the disease was possibly related to prolonged exposure to TCE. Such exposure had been associated with the development of Parkinson's disease. The physician assistant who conducted the February 2012 VA examination opined that the Veteran's Parkinson's disease was not likely ("less than likely as not") associated with in-service exposure to TCE. She reasoned that although some small studies in specific populations had indicated that TCE exposure may possibly increase the risk for the development of Parkinson's disease, the overall evidence from available studies was of insufficient quantity, quality, and consistency to determine if TCE exposure is a causative factor in the development of the disease. The Veteran's additional risk factors for the development of Parkinson's disease included natural aging (he was 61 years old at the time he was diagnosed as having the disease) as well as his male sex. Additionally, some studies indicated that TCE appeared to be a risk for development of early onset Parkinson's disease. However, the Veteran was diagnosed as having the disease during the typical timeframe for the development of idiopathic Parkinson's disease (i.e., in the sixth decade of life). Thus, it was not likely ("less than likely as not") that his current Parkinson's disease was caused by or related to in-service TCE exposure. In VA treatment record addendums dated in May 2014, the Veteran's treating physician indicated that studies (including both animal studies and epidemiologic studies) had shown "very convincing evidence" that TCE exposure increases the risk of Parkinson's disease. A fairly recent study among twins revealed that the twins who were exposed to TCE had a 6 fold increased incidence of Parkinson's disease. In animal studies, TCE was shown to kill substantia Nigral cells. These cells are the main cells implicated in Parkinson's disease. The physician concluded that the "connection appear[ed] to be clear" and that there was typically a many decade lag between exposure to TCE and the development of Parkinson's disease. In July 2014, the Veteran submitted a letter from R. Langston, M.D. in which the physician opined that it was likely ("50 percent likely as not") that the Veteran's Parkinson's disease began secondary to his exposure to TCE in service. This opinion was based upon a review of the Veteran's service treatment records and his post-service medical records and the fact that he was exposed to TCE in service. TCE had been shown to be a statistically significant probable cause of Parkinson's disease. Also, the Veteran had no familial history of the disease or any other exposures. The February 2012 and July 2014 opinions were both based upon a review of the Veteran's medical records and reported history and they are accompanied by specific rationales that are not inconsistent with the evidence of record. These opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the May and September 2008 and February 2009 opinions and the information provided by the Veteran's treating physician in May 2014 are of little probative value because they are either equivocal or do not directly link the Veteran's current Parkinson's disease to TCE exposure in service, they at least support the conclusion that such a relationship exists. In light of the above opinions, the information provided by the Veteran's treating physician, and the articles that have been submitted, the evidence is in relative equipoise as to whether the Veteran's current Parkinson's disease is related to TCE exposure in service. Resolving all reasonable doubt in his favor, the Board concludes that the criteria for service connection for the currently diagnosed Parkinson's disease have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for Parkinson's disease is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs