Citation Nr: 0126630 Decision Date: 11/21/01 Archive Date: 11/27/01 DOCKET NO. 97-27 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for Parkinson's disease (PD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and C.C. ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The veteran had active service from April 1960 to March 1964 and from June 1965 to June 1967. This appeal is from a June 1997 rating decision of the Department of Veterans Affairs (VA) North Little Rock, Arkansas, regional office (RO). In November 2000, the Board of Veterans' Appeals solicited an expert medical opinion from a physician in the Veterans Health Administration of VA, so informing the veteran by letter at that time. In February 2001, the Board provided the veteran's representative a copy of the VHA opinion. The veteran, through his representative, has submitted a medical opinion in rebuttal and a waiver of his right to initial review of this additional evidence by the agency of original jurisdiction, the RO. See 38 C.F.R. § 20.1304(c) (2001). FINDINGS OF FACT 1. The veteran handled pesticides in service. 2. The veteran has Parkinson's disease, diagnosed in 1994. 3. It is at least as likely as not that his Parkinson's disease is related to exposure to pesticides in service. CONCLUSION OF LAW The veteran incurred Parkinson's disease in wartime service. 38 U.S.C.A. §§ 1110, 5107(b) (West Supp. 2001); 38 C.F.R. §§ 3.102; 3.303(d) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background A Navy performance report for the period April to October 1966 describes the veteran's assigned tasks at Memphis Naval Air Station as including supervising pest control details and spraying insecticide in and outside of living quarters. Service medical records are negative for neurologic complaints, findings, or diagnoses, except for a headache associated with diagnosed mild cervical strain the day after a rear-end accident in a motor vehicle in which his vehicle was hit while stopped. VA outpatient records of September 1991 to October 1999 include an August 1994 neurology note of the veteran's complaints of right leg and ankle spasms for the past month and a February 1995 neurology impression of new onset of PD. No record predating August 1994 shows complaints of problems with muscle control or other symptoms later identified as neurological. The medical record subsequent to February1995 consistently reports the diagnosis of PD, which has now been shown to be progressive. On VA neurology examination in November 1996, the veteran reported progressive symptoms beginning in 1980 that he believed were of PD, but that he did not see a neurologist until 1994. He reported exposure to pesticides in service as a medical technician, during which time he mixed insecticides and supervised others in the mixing and spraying of them. The veteran his belief that some of them were organic phosphate pesticides, because he developed classic symptoms of weakness, nausea, vomiting, vertigo and increased salivation in service soon after handling certain pesticides. He reported that he did not seek medical treatment, because as a medic he was familiar with the symptoms. The examiner, upon taking a report of current subjective complaints and conducting physical examination, diagnosed PD. In a December 1996 statement, the veteran reported that his only treatment for PD was at the VAM[edical]C[enter]. The veteran had a VA neurology examination in May 1997. He reported last working in October 1996; he was a hearing aid specialist. The examiner noted the veteran's history of onset of symptoms about 1980 and subsequent progression leading to diagnosis of PD in 1994. In further history, the examiner recorded, This man was born in California and grew up in the San Francisco Bay area. While he was growing up, he spent a significant amount of time on a farm, during which time, he had some exposure to pesticides and significant exposure to well-water. There is no history of encephalitis, significant head trauma, or exposure to neuroleptics or Metoclopramide HCL. There is no history of intravenous illicit drug use. He claims to have significant exposure to pesticide for approximately one year while the Military, at which time, he supervised the use of herbicides and pesticides. Upon physical examination, the examiner diagnosed PD. In his examination impression, the examiner stated, in pertinent part, Exposure to pesticides and well water are known to be risk factors for the development of Parkinson's disease, but the relationship between these exposures and the development of Parkinson's disease is not well-established. It is the opinion of the examiner that this man's exposure to pesticides while he was in the Service, should be considered a risk factor for subsequent development of Parkinson's disease, but it cannot be considered a causative factor. It should be noted that this man has a history of significant exposure to pesticides and well-water while he was growing up in California. In a June 1997 statement, the veteran asserted that the May 1997 VA examiner misstated his report of his history of pesticide exposure. The veteran stated that he told the examiner that he drank well water in 1965-67 when visiting his in-laws in Harrison, Arkansas, while in the Navy. The veteran denied spending significant time on a farm or drinking well water during his childhood, or having significant pesticide exposure at any time other than while in the Navy. The veteran testified at a hearing in September 1997 that he handled multiple pesticides in the course of his duty as a medical technician at Memphis Naval Hospital in the late 1960s. He testified about the circumstances of his handling pesticides in service. He summarized his understanding of literature about PD that he had read. His ex-wife testified that they were married from 1962 to 1973 and that she did not notice any Parkinson's-type symptoms during that time. In an April 1998 letter, the Navy Facilities Engineering Command (NFEC) reported that the Navy Applied Biologist, who was familiar with the pest control program at NAS Memphis during the years 1965 through 1967, had verified that records for that time were not retained. In a follow-up letter of July 1998, the NFEC clarified that records of pesticide usage at NAS Memphis during the veteran's period of service did not exist. NFEC provided a list of 44 pesticides in common usage at naval shore installations during the 1960s, stating it was not known whether, and in what quantities these pesticides were used at NAS Memphis. In February 1999, the veteran indicated by asterisks on the pesticide list five pesticides that he alleged using while in the Navy: Dacthal, DDT, Methyl Bromide, Rotenone, and Silvex. In February 2000 hearing testimony, the veteran reported that his post-service career was as a hearing instrument specialist for Miracle Ear. He denied any pesticide exposure before or after service. In a February 2000 statement, D. Brown, M.D., a neurologist following the veteran for PD, reported that he could not verify the veteran's exposure to pesticide while in the Navy. Dr. Brown stated that he knew of no definite proof of any Parkinson syndrome being related to pesticide use, even though that had been investigated in the past without proof being obtained. In November 2000, the Board requested a medical expert opinion pursuant to 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. § 20.901(a) (2001). The Board requested that the medical expert review the veteran's record and determine whether the veteran's development of Parkinson's disease is as [sic] least as likely as not related to his exposure to pesticides during service. In January 2001, a VA memorandum medical opinion was received. The medical expert opinion was as follows: 1. I am asked to determine whether, to a reasonable degree of medical certainty, [the veteran's] development of Parkinson's disease (PD) is at least as likely as not related to his exposure to pesticides during military service. 2. The relevant clinical information is as follows. [The veteran] served in the Navy from 1965-7. His duties required use of pesticides. The specific pesticides to which he may have been exposed included Dacthal, DDT, Lindane, methyl bromide, rotenone and Silvex ([the veteran's] letter of 11/13/2000 asserts definite exposure to rotenone in "1960- 61" however other records provided me only refer to rotenone as one of several "Pesticides commonly used . . . in the late 1960's). He suffered no documented episode of acute toxicity. PD was formally diagnosed in 1994. 3. The concern that pesticides may be related to [the veteran's] illness arises from epidemiologic, clinical and experimental observations. Various epidemiologic studies indicate that pesticide exposure is a risk factor for development of PD (e.g. Gorell et al., "The risk of PD with exposure to pesticides, farming, well water, and rural lining", Neurology 50:1346, 1998). Case reports describe typical PD following several years of occupational exposure to various chemicals among which were pesticides (e.g. Bocchetta and Corsini, "PD and Pesticides", Lancet, 2:1163, 1986). Finally, investigators have produced a PD like condition in rats given rotenone (Betarbet et al, "Chronic systemic pesticide exposure reproduces features of PD", Nature Neurosciences, 3: 1301, 2000; this article describes the research which is the basis of the Arkansas Democrat-Gazette article submitted by [the veteran]). 4. In reference to [the veteran's] claim, these research findings must be qualified. Though the epidemiologic studies such as Gorell et al. may, in their words, assert "a significant association of occupational exposure to herbicides and pesticides with PD" these studies do not establish specific toxic agents, the necessary amount or type of exposure nor do they define susceptible groups of people. The pesticides mentioned in specific case reports of chronic PD are not the same as the agents to which [the veteran] claims exposure. Finally, though rotenone causes features of PD in rats, the applicability of that model to human disease remains to be established; as noted by Giasson and Lee in their commentary in the same issue of Nature Neurosciences, "The results of Betarbet et al. are likely to raise new questions about [rotenone's] safety, although whether rotenone exposure contributes to the incidence of PD remains to be determined." Moreover, even should rotenone be proven to cause PD in humans, it would remain to be established if [the veteran] had sufficient rotenone exposure or the necessary susceptibility. 5. In conclusion, it is not proven at this time that pesticides in general or rotenone in particular cause PD. Therefore I cannot conclude that [the veteran's] development of PD is at least as likely as not related to his exposure to pesticides during service. The veteran's representative thereafter submitted a September 2001 medical opinion from a neuroradiologist, C.N. Bash, M.D. Dr. Bash reviewed the medical records of the veteran as well as the VHA opinion and medical literature. Dr. Bash stated his opinion that it was more than 50 percent likely that the veteran's PD was caused by his service exposure to pesticides. Dr. Bash stated that: In review of the medical record it is apparent that this patient was exposed to pesticide during his service time. It is also clear that the exact dose/type/amount of exposure is not known as several thousand different compounds are used in the formulation of pesticides. In order to fairly evaluate this case I have assumed that this patient was exposed to a significant amount of pesticide because he was mixing and spraying it over a one to two-year time period. I have listed below several abstracts from a recent Pubmed search that I performed. Many of these articles are from the year 2000 and were not available to other physicians who may have reviewed this record in the late 1990's or early 2000. The abstracts reprinted at the bottom of this report show to a high degree of probability that pesticides are a risk factor and are likely one causative agent in PD especially in patient's who were diagnosed after the age of 50. It is my opinion that this patient's service exposure to pesticides is the likely (greater than 50% probability) caused his current PD for the following reasons: 1 The patient was exposed to pesticides in service. 2 The patient was diagnosed with PD after the age of 50 thereby reducing the risk of hereditary PD. 3 The patient does not have other risk factors for PD such as head trauma. 4 The literature supports a causative link (odds ratios greater than 1) between pesticide exposure and PD. 5 This opinion is supported by the opinion of one VA physician who stated the following on Dec 1996 "...Parkinson's disease as a result of pesticide exposure during military service . . .Dr. Elsharydah neurology..." * * * Dr. Bash submitted abstracts of 11 scientific or medical articles. During the pendency of his claim, the veteran has submitted numerous articles about PD, its course and its causation, from scientific, medical, and lay journals and organizational organs. II. Analysis A. Veterans Claims Assistance Act of 2000 The November 9, 2000, enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001), prescribed VA's duties to notify and assist claimants for VA benefits. VA has promulgated regulations implementing the VCAA. See 66 Fed. Reg. 45,620- 32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). VCAA had not been enacted prior to transfer of this case to the Board. Therefore, the RO has had no opportunity to review the file to determine whether there has been substantial compliance with the Act. However, the Board's determination herein is fully favorable to the veteran. There would be no possible benefit to remanding this case to the RO for its consideration of the requirements of the VCAA in the first instance. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Under these circumstances, adjudication of this appeal, without referral to the RO for initial consideration under VCAA, poses no harm or prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Additionally, the Board's consideration of the VCAA regulations in the first instance is not prejudicial to the appellant because the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided by the VCAA. B. Service Connection In seeking VA disability compensation, the veteran seeks to establish that current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001). Such a disability is called "service connected." 38 U.S.C.A. § 101(16) (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2001). The Secretary [of Veterans Affairs] shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b) (West Supp. 2001). There is no statutory presumption of incurrence in service that can aid the veteran to establish service connection for PD given the facts of this case. The presumption of service connection afforded organic diseases of the nervous system cannot apply, because there is no evidence that PD was 10 percent disabling within one year following the veteran's separation from service. See 38 U.S.C.A. §§ 1101, 1112(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309(a) (2001). The veteran has not produced evidence that he now manifests a chronic disease that was shown to be chronic in service, consequently, he cannot establish service connection by showing that he has the same disease now as one that was shown in service to be chronic. See 38 C.F.R. § 3.303(b) (2001). The veteran may establish service connection with evidence that a condition was noted in service and of continuity of symptomatology between a currently diagnosed disease and the condition noted in service. Id. The veteran reported to the November 1996 examiner that he had acute symptoms in service that he knew then to be related to pesticide exposure. He qualified his competency to identify his symptoms by reporting he was a medic. He also obtained the testimony of his ex-wife that he did not demonstrate Parkinson's-type symptoms during their marriage from 1962 to 1973, and he several time reported his first awareness about 1980 of symptoms later diagnosed as Parkinson's disease. The testimonial evidence, both in examination reports and at hearings, does not establish that a Parkinson's-like condition was noted in service. It is a medical question whether the symptoms now reported as occurring in service were a Parkinson's or Parkinson's-like condition noted in service within the meaning of section 3.303(b) of the sort that requires a medical opinion to constitute evidence that the condition was noted in service. Savage v. Gober, 10 Vet. App. 488 (1997). The veteran has not submitted evidence, and his occupational title, medical technician, does not indicate, that he has medical expertise in neurology. Where the veteran's opinion is not an expert opinion, it is not in this case evidence that PD or any other precursor condition was noted in service. Moreover, even if the symptoms reported to the November 1996 VA examiner were deemed evidence that a condition was noted in service, the veteran has consistently reported a more than 10 year discontinuity in symptomatology. The preponderance of the evidence is against finding PD service connected on the basis of continuity of symptomatology with a condition noted in service. 38 C.F.R. § 3.303(b). The above notwithstanding, "[s]ervice connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2001). In this case, the evidence pertinent to service is the personnel record confirming the veteran's exposure to pesticides. The standard of proof to prevail in claims for VA benefits is equipoise of the evidence for and against. 38 U.S.C.A. § 5107(b) (West Supp. 2001). VA will deny a claim only where the preponderance of the evidence is against the veteran's claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Federal Circuit has held, regarding whether a claimant may show service connection due to radiation exposure for a disease not subject to a statutory presumption of service connection, that the claimant may show actual causation and hence service connection. Combee v. Brown, 34 F. 3d 1039, 1045 (Fed. Cir. 1994). The Federal Circuit did not hold that the burden of proof of actual causation was greater than evidence in equipoise. There are two material questions the answers to which must be in equipoise for the veteran to prevail. First, is it as likely as not that the veteran's PD is due to exposure to pesticides? Second, if the first question is affirmative, is the veteran's PD due to exposure to pesticides in service? There is competent and credible medical evidence that both supports the veteran's claim and is against his claim. The Board deems all of the medical reports and opinions of record credible, as the Board lacks the expertise to critique the validity of the underlying science informing the several medical opinions of record, and the veracity of the reporting physicians is not impeached by evidence in the record. The Board must assess the probative value of the medical evidence in this case by considering other factors, such as the thoroughness of medical record and file review and the medical rationales cited. The November 1996 VA examination report and the other medical evidence of record merely confirms the diagnosis of PD and its date of diagnosis, which are not at issue (although the medical record does seem to show a 1995 rather than a 1994 diagnosis as was reported several times). The May 1997 examination report has essentially neutral probative value. It neither confirms nor refutes the assertion that the veteran's PD is due to pesticide exposure in service. It is suggestive of a relationship between exposure and PD, but equivocal about the circumstances of such exposure. On the whole, it is not evidence against the veteran's claim. Additionally, the veteran explicitly rebutted the May 1997 examiner's report of his purported history of childhood exposure to pesticides. The record does not independently impeach the veteran's assertion that the May 1997 examiner misunderstood his answers to questions at the examination. The statement by Dr. Brown appears to be adverse to the veteran's claim. The declaration of ignorance of definite proof of the relationship between pesticide exposure and PD does not weigh in favor of the veteran's claim. However, the probative weight against the claim is little, because Dr. Brown merely indicated his unawareness of a fact that the veteran need not establish to prevail, i.e., definite proof of a relationship between pesticide exposure and PD. The crux of this case is the weight of the scientific/medical evidence as presented in the opinion of the VA medical expert and of Dr. Bash on whether it is at least as likely as not that the veteran's PD is related to exposure to pesticides in service. The VHA doctor opined negatively and Dr. Bash opined positively. Each provided reference to and interpretation of scientific literature. They reached different conclusions on the underlying scientific question of the relationship between exposure to pesticides and development of PD, one concluding that it was not proven that pesticides cause PD, the other concluding that there is a positive association between pesticide exposure and PD. Each opined consistently with those conclusions regarding the probability of a relationship between the veteran's pesticide exposure in service and his PD. The VHA doctor focused on the lack of proof to a scientific standard of certainty that exposure to pesticides causes PD. The conclusion that causation was not proven was not responsive to the veteran's burden of proof of an issue material to the determination of his claim. The question material to the claim is whether there is a positive relationship between exposure to pesticides and the development of PD. The veteran's burden of proof regarding that material point is to produce evidence showing that such a relationship is as likely as not. In stating that he could not conclude that the veteran's development of PD is at least as likely as not related to exposure to pesticides in service because it is not proven that pesticides in general cause PD, the opinion confounded the standard of proof required of the veteran to establish entitlement to service connection with the standard of proof necessary to establish scientific causation. Dr. Bash opined that peer reviewed scientific literature shows to a high degree of confidence that there is a positive association between exposure to pesticides and development of PD. He noted several factors that increased his confidence of such a relationship in the veteran and that the exposure was in service. Specifically, Dr. Bash found the fact of development of PD after age 50, as addressed in cited literature, and the lack of other risk factors, to weigh in his conclusion. Dr. Bash also commented on the incorrect standard of proof the VA expert applied in formulating an opinion whether it was as likely as not that the veteran's PD was related to pesticide exposure in service. In weighing the two expert opinions, the Board cannot find the VA opinion to be of such weight as to constitute a preponderance of the evidence against the veteran's claim. Taken together with all other evidence that tends to be adverse to his claim, the evidence is approximately in equipoise on the material questions whether there is a positive association between pesticide exposure and PD generally, and whether the veteran's PD is related to pesticide exposure in service. Affording the veteran the benefit of the doubt, entitlement to service connection for Parkinson's disease is established. 38 U.S.C.A. § 5107(b) (West Supp. 2001); 38 C.F.R. § 3.102 (2001). ORDER Service connection for Parkinson's disease is granted. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals