Citation Nr: 1313875	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  11-17 824	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for Parkinson's disease, including as due to in-service herbicide exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. B. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from November 1951 to November 1971. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 

The Veteran requested a hearing before the Board when he submitted his substantive appeal in June 2011.  The Veteran's representative submitted a statement in August 2011 and indicated that the Veteran no longer desired to testify at a hearing before the Board.  38 C.F.R. § 20.704(e).  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. The Veteran did not serve in the Republic of Vietnam, and is not shown to have been exposed to an herbicide agent during service in Thailand.

2.  Parkinson's disease was first shown many years following discharge from service, and is not shown to be related to any disease, injury or other event in service.  


CONCLUSION OF LAW

Parkinson's disease was not incurred in active service, and Parkinson's disease many not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Notice and Assistance

Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a).  The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App.112 (2004).  The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).  

The RO provided the appellant pre-adjudication notice by letters dated November 2009 and January 2010.  The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a service connection claim, and the relative duties of VA and the claimant to obtain evidence.  The November 2009 letter also notified the Veteran of how initial disability ratings and effective dates are assigned for all grants of service connection, pursuant to the holding in Dingess.  The January 2010 letter provided notice as to the specific guidelines regarding claims involving exposure to herbicides outside of Vietnam.  Both letters requested that the Veteran provide specific details regarding his alleged in-service herbicide exposure.  

In January 2010, as part of VA's duty to assist the Veteran in obtaining evidence, the RO initiated a request from the National Personnel Records Center (NPRC) for "pages from the [Veteran's] personnel file showing unit of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decoration, and official travel outside the U.S."  The requested records were associated with the claims file. 

In July 2011, the RO initiated a second request from the NPRC for the Veteran's "dates of service in Vietnam."  The requested records were associated with the claims file. 

Because the Veteran's complete personnel file had not been requested, the matter was remanded in November 2012 in order to obtain all of the records associated with the personnel file to find out whether the Veteran's duties at Ubon RTAFB required that he serve near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence.  The Veteran's complete personnel file was associated with the claims file and the case was returned to the Board.  

The agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).   

Moreover, in light of the notices sent to the appellant, as discussed above, the duty to notify has been met.  

As noted above, VA has obtained service treatment records and service personnel records.  The Veteran has provided evidence of a current disability, and the Veteran has been notified of the evidence necessary to substantiate his claim.  

Although the Veteran was not afforded a VA examination to determine the likely etiology of the Parkinson's disease, no such examination is necessary in this case because there is no evidence of Parkinson's disease or Agent Orange exposure in-service and the record does not reflect the presence of Parkinson's disease until many years after discharge from service.  In disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

Because there is no evidence tending to show that the Veteran developed Parkinson's disease in service; or, that the Veteran was exposed to Agent Orange during service, as discussed below, then VA is not under an obligation to provide the Veteran with a VA examination to satisfy the Duty to Assist.  In this regard, there is no competent evidence indicating that Parkinson's disease may be related to service.  The Veteran, as a lay person, is not competent to opine that his Parkinson's disease is related to service as this matter is beyond the capability of a lay person to observe.

VA has assisted the Veteran in obtaining evidence and the Veteran was afforded an opportunity to give testimony before the Board.  All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise.  

In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim.  The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below.  A March 2013 VA examination conducted for other purposes notes that the Veteran has Parkinson's disease, which is a known fact, but does not address whether it is related to active service.  Therefore, a waiver of agency of original jurisdiction review of the evidence is not required pursuant to 38 C.F.R. § 20.1304(c) (2012).  

VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time.

II.  Service Connection

The Veteran contends that he was exposed to herbicides while serving in Thailand during the Vietnam era.  Specifically, he asserts that he served at Ubon Royal Thai Air Force Base (RTAFB) for one year.  He asserts that service connection is warranted for Parkinson's disease on a presumptive basis as due to in-service herbicide exposure.  

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

Service 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).

Also , certain chronic diseases, including organic diseases of the neurologic system, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service.  38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In addition to these provisions, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e) (2012), shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service.  See 38 C.F.R. § 3.307(a)(6)(iii) (2012).  If a veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307(a) (2012) are met, even if there is no record of such disease during service.  38 C.F.R. § 3.309(e) (2012).  The list of diseases includes: chloracne or other acneform disease consistent with chloracne, type 2 diabetes, Hodgkin's disease, Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); Parkinson's Disease, all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma.  Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma)  Note 1 in this section indicates that the term "soft-tissue sarcoma" includes the following:  Adult fibrosarcoma; dermatofibrosarcoma protuberans; malignant fibrous histiocytoma; liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; and malignant ganglioneuroma.  See 38 C.F.R. § 3.309(e) (2011).   

Notwithstanding the foregoing presumption provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98- 542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation.  Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239   (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998).  See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).  Thus, presumptive service connection is not the sole method for showing causation.  In this regard, the adjudication below includes consideration of whether service connection may be awarded for Parkinson's disease on a direct incurrence basis.

A review of the Veteran's service personnel records reveals that he served as a vehicle dispatcher at Ubon RTAFB from July 1966 to July 1967.  The Veteran has never suggested, and the record does not show, that the Veteran served in the Republic of Vietnam.

The RO initially denied the Veteran's claim based on a finding that exposure to Agent Orange was not conceded.  The basis for his finding was a 2005 memorandum indicating some herbicide testing programs in Thailand 1964 and 1965.  The RO concluded the Veteran was not exposed to Agent Orange in Thailand in 1966 and 1967, because all testing operations were stopped before he arrived there.  

VA has developed specific procedures to determine whether a Veteran was exposed to herbicides in Thailand.  VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(q), directs that if the veteran did not serve at one of the specified Royal Thai Air Force Bases as an Air Force security policeman, a security patrol dog handler, member of the security police squadron or otherwise near the air base perimeter, then a copy of the Compensation Service's "Memorandum for the Record" should be placed in the claims folder.  The Veteran should then be asked for the approximate dates, location and nature of alleged exposure.  If the Veteran provides sufficient information to permit a search by the U.S. Army and Joint Services Records Research Center for verification of exposure to herbicides, then such a request should be sent.  Id. 

Per the Memorandum pertaining to herbicides use in Thailand during the Vietnam era, which is included in the claims folder, the Compensation and Pension Service has reviewed a listing of herbicide use and test sites outside Vietnam provided by the Department of Defense.  This list contains 71 sites within the U.S. and in foreign countries where tactical herbicides, such as Agent Orange, were used, tested, or stored.  Testing and evaluations of these tactical herbicides were conducted by or under the direction of the U.S. Army Chemical Corps, Fort Detrick, Maryland.  The list does not contain names of individuals.  Additionally, it does not contain any references to routine base maintenance activities such as range management, brush clearing, weed killing, etc., because these vegetation control activities were conducted by the Base Civil Engineer and involved the use of commercial herbicides approved by the Armed Forces Pest Control Board.  The application of commercial herbicides on military installations was conducted by certified applicators.  Department of Defense has advised that commercial herbicides were routinely purchased by the Base Civil Engineer under federal guidelines and that records of these procurements were generally kept no longer than two years.  Compensation and Pension Service has also reviewed a series of official Department of Defense monographs describing in detail the use, testing, and storage of herbicides at various foreign and domestic locations.  In addition, the Project CHECO Southeast Asia Report: Base Defense in Thailand, produced during the Vietnam era, has been reviewed.

Regarding a veteran claimant with Thailand service, the Department of Defense list indicates only that limited testing of tactical herbicides was conducted in Thailand from 2 April through 8 September 1964.  Specifically, the location identified was the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand.  The Report of these tests noted that 5 civilian and 5 military personnel from Fort Detrick, Maryland conducted the spray operations and subsequent research.  This location was not near any U.S. military installations or Royal Thai Air Force Base.

Tactical herbicides, such as Agent Orange, were used and stored in Vietnam, not Thailand.  A letter from the Department of the Air Force states that, other than the 1964 tests on the Pranburi Military Reservation, there are no records of tactical herbicide storage or use in Thailand.  There are records indicating that commercial herbicides were frequently used for vegetation control within the perimeters of air bases during the Vietnam era, but all such use required approval of both the Armed Forces Pest Control Board and the Base Civil Engineer.  In Vietnam, tactical herbicides were aerially applied by UC-123 aircraft in Operation RANCH HAND or by helicopters under the control of the U.S. Army Chemical Corps.  Base Civil Engineers were not permitted to purchase or apply tactical herbicides.  There are no records of tactical herbicide spraying by RANCH HAND or Army Chemical Corps aircraft in Thailand after 1964, and RANCH HAND aircraft that sprayed herbicides in Vietnam were stationed in Vietnam, not in Thailand.  However, there are records indicating that modified RANCH HAND aircraft flew 17 insecticide missions in Thailand from 30 August through 16 September 1963 and from 14-17 October 1966.  The 1966 missions involved the spraying of malathion insecticide for the "control of malaria carrying mosquitoes."  These facts are not sufficient to establish tactical herbicide exposure for any veteran based solely on service in Thailand.

While the Thailand CHECO Report does not report the use of tactical herbicides on allied bases in Thailand, it does indicate sporadic use of non-tactical (commercial) herbicides within fenced perimeters.  Therefore, if a veteran's MOS (military occupational specialty) or unit is one that regularly had contact with the base perimeter, there was a greater likelihood of exposure to commercial pesticides, including herbicides.  Security police units were known to have walked the perimeters, especially dog handlers.  However, as noted above, there are no records to show that the same tactical herbicides used in Vietnam were used in Thailand. 

If the veteran's claim is based on general herbicide use within the base, such as small-scale brush or weed clearing activity along the flight line or around living quarters, there are no records of such activity involving tactical herbicides, only the commercial herbicides that would have been approved by the Armed Forces Pest Control Board and sprayed under the control of the Base Civil Engineer.  Since 1957, the Armed Forces Pest Control Board (now the Armed Forces Pest Management Board) has routinely provided listings of all approved herbicides and other pesticides used on U.S. Military Installations worldwide.  Id. 

VA has determined that a special consideration of herbicide exposure on a factual basis should be extended to Veterans whose duties placed them on or near the perimeters of Thailand military bases.  Specifically, if a Veteran served in the U.S. Air Force in Thailand during the Vietnam era (January 9, 1962, through May 7, 1975) at one of the RTAFBs at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang as an Air Force security policeman, security patrol dog handler, member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, VA will concede herbicide exposure on a direct/facts-found basis and service connection will be granted.  M21-1MR, Part IV, Subpart ii, Chapter 2, § C.10.q. 

In light of the updated procedures, the RO provided as much information as possible to the JSRRC for a follow-up inquiry.  The JSRRC Coordinator replied in June 2011 that there was a lack of information required to verify service in the Republic of Vietnam, or exposure to Agent Orange during military service.  This memorandum notes that the RO sent the Veteran a letter asking him for information on how his military duties exposed him to herbicides; and, the Veteran's response was that his unit was stationed for one year at UBON Air Force Base 37 miles from Cambodia.  

While the Veteran' s claim was pending appellate review, the RO conducted a "Nehmer" review because Parkinson's Disease had recently been added to the list of diseases which are presumed due to exposure to herbicide agents.  In a July 2011 letter to the Veteran, the RO once again requested a response as to how his duties exposed him to herbicides.  The Veteran did not respond to that request.  Additional personnel records were obtained, and a September 2011 memorandum from the JSRRC noted once again indicated that there was a lack of information required to concede in-service herbicide exposure.  In a September 2011 rating decision, the RO indicated that a systemic review of the Veteran's claims folder had been conducted in accordance with Nehmer v. U.S. Department of Veterans Affairs, which requires the payment of retroactive benefits to certain Nehmer class members.  The RO explained that the Veteran's case was identified as a potential Nehmer-class case because of the addition of Parkinson's disease to the list of diseases presumptively associated with exposure to certain herbicide agents.  Despite the additional review, the result was the same.  The Veteran did not have service in Vietnam during the Vietnam era, and there was insufficient evidence to find that he was otherwise exposed during service in Thailand.  

As noted above, the Veteran's entire personnel file was obtained and associated with the claims file.  A review of these records did not provide any evidence showing that the Veteran had any duty assignments other than that of vehicle dispatcher during service in Thailand.  The performance evaluation reports covering his service in Thailand do not reference any duties that would have placed him near the air base perimeter.  

Given the regulatory criteria and precedent opinions from the VA Office of General Counsel and Compensation and Pension Service cited above, and the lack of any evidence that the Veteran's service included any service near the perimeter of the Ubon air base, his assertions as to such exposure merely through service at Ubon air base, are insufficient to trigger application of the presumption provisions at 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6) as noted above.  

Although the Veteran sincerely believes that he was exposed to Agent Orange while serving in Thailand, he did not serve there until the documented testing of Agent Orange and other herbicides ceased; and, he has not asserted that his Thailand service included service near the perimeter of the Ubon base, or that his MOS (military occupational specialty) of vehicle dispatcher involved any service as a security policeman, security patrol dog handle, member of a security police squadron, or other service near the air base perimeter.  Moreover, the Veteran did not provide information concerning the circumstances surrounding which he believes the exposure occurred.  In other words, the Veteran has not contended that he served in Thailand in a capacity such that exposure to in-service herbicides could be acknowledged or found on a direct basis.  

Turning to whether entitlement to service connection for Parkinson's disease is warranted on the basis of direct incurrence, a thorough review of the Veteran's claims file reveals no medical evidence linking his Parkinson's disease apparently first diagnosed in approximately 2006, to symptomatology or pathology present during active service so many years earlier.  A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

In adjudicating this claim, the Board must assess the Veteran's competence and credibility with respect to his statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005).  In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person).  As noted above, the Veteran is not competent as a lay person to attribute his Parkinson's disease to service as this is a matter that is beyond the ability of a lay person to observe.  

In short, the positive evidence, which is limited to the unsupported contentions of the Veteran that he was exposed to herbicides in Thailand, is outweighed by the fact that the service personnel records do not show that the Veteran had duties in Thailand that placed him near the air base perimeter.  The service personnel records constitute highly probative evidence as to the Veteran's duties while serving in Thailand and the Veteran has not provided evidence to the contrary.  There is also a lack of any competent medical evidence linking Parkinson's disease to service and the Veteran has not reported that he had symptoms of Parkinson's disease that began in service.  Thus, the claim of service connection must be denied.


ORDER

Service connection for Parkinson's disease is denied.  



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs