Citation Nr: 1315772	
Decision Date: 05/14/13    Archive Date: 05/15/13

DOCKET NO.  12-02 951	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for Parkinson's disease. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

L. Zobrist, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1983 to April 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  A notice of disagreement was received in March 2010, a statement of the case was issued in December 2011, and a substantive appeal was received in January 2012.


FINDING OF FACT

The Veteran's Parkinson's disease first manifested many years after service and is unrelated to any incident of service, including exposure to ionizing radiation therein.


CONCLUSION OF LAW

Parkinson's disease was not incurred in or aggravated by the Veteran's active duty service, to include exposure to ionizing radiation, nor may it be presumed to have been incurred in or aggravated by such service.  38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).



Duty to Notify

Upon receipt of a 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 with proper notice by letter dated in December 2009.  This notice complied with the specificity requirements of Dingess, identifying the five elements of a service connection claim, and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. 

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

Duty to Assist

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  The record as it stands includes sufficient competent evidence.  All available pertinent records have been obtained, and the Veteran has not contended otherwise.  VA has obtained service and VA treatment records and has assisted the Veteran in obtaining private medical evidence.

With regard to service connection issues being decided herein, the Board finds that a VA medical examination (with nexus opinion) is not required in order to make a final adjudication with regard to the service connection claim on appeal.  McLendon v. Nicholson, 20 Vet. App. 79 (2006), states that, 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; (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 VA to make a decision on the claim.

The Board finds that the standards set forth in McLendon are not met with regard to the issue on appeal in this case.  As discussed below, Parkinson's disease is not among the listed diseases that may be presumptively service-connected if manifested in a radiation-exposed veteran, nor is it a radiogenic disease.  The evidence in this case establishes that there is no competent scientific or medical evidence supporting a connection between Parkinson's disease and radiation exposure and that the Veteran is not shown to have suffered an in-service injury or disease related to his Parkinson's disease.  Thus, there is no indication that the Veteran's current disability is associated with his service.


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 and his representative have not contended otherwise.

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

Analysis

This appeal involves a claim of entitlement to service connection for Parkinson's disease, to include as secondary to radiation exposure.

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also 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).  Certain chronic disabilities, such as organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1133; 38 C.F.R. §§ 3.307, 3.309.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465,469 (1994). 

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, supra.

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  38 C.F.R. § 3.159 (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 facts or circumstances and conveys matters that can be observed and described by a lay person); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr, 21 Vet. App. at 310 ("[T]he Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms.").  
In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Also, a veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau).

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F. 3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition; he is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).

The Board further notes that it has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Board finds that, in this case, service connection is not warranted with regard to Parkinson's disease because the disability first manifested many years after service and is unrelated to any incident of service, including exposure to ionizing radiation therein.

The Veteran contends that his Parkinson's disease is the result of exposure to ionizing radiation from fallout from the Chernobyl disaster while he was stationed in Germany.  His service personnel records demonstrate that he was stationed in Germany from March 1983 to August 1986.  The Board takes judicial notice that the Chernobyl disaster occurred on April 26, 1986.

Service connection for a disability that is claimed to be attributable to exposure to ionizing radiation can be demonstrated by three different methods.  Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997).  First, there are certain diseases for which presumptive service connection may be granted if they are manifested in a Veteran who participated in a radiation-risk activity.  38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d) (2012).  In this case, Parkinson's disease is not among the listed diseases that may be presumptively service-connected if manifested in a radiation-exposed veteran.  38 C.F.R. § 3.309(d)(2).  In addition, the Veteran did not participate in a radiation-risk activity, as defined in § 3.309(d)(3), nor did he respond to VA's August 2011 letter requesting additional evidence with regards to his alleged radiation exposure.  Consequently, service connection for Parkinson's disease on a presumptive basis as a disease specific to radiation-exposed veterans is not warranted.

Second, "radiogenic diseases" may be service-connected pursuant to 38 C.F.R. § 3.311; Parkinson's disease is not deemed a radiogenic disease under 38 C.F.R. § 3.311(b)(2).  Nevertheless, if a claim is based on a disease other than one of those listed in § 3.311, VA shall consider the claim under the preceding provisions provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease.  38 C.F.R. § 3.311(b)(4).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

In the present case, the Veteran has neither submitted, nor cited, any competent scientific or medical evidence that Parkinson's disease is a radiogenic disease.  Of the treatise evidence submitted in March 2010:  two articles address, generally, the potential for negative health outcomes following the Chernobyl disaster but do not implicate any specific disabilities; two articles discuss, generally, negative outcomes associated with military use of ammunition made from depleted uranium; one article addresses, in general terms, the side effects of cobalt radiation; one article notes an association between free radicals (caused by heavy metal, stress, smoking, excess alcohol, and air pollution) and Parkinson's disease and speculates, without support, that ionizing radiation may initiate free radicals; and one study found no correlation between exposure to ionizing radiation and development of Parkinson's disease.  Of the treatise evidence submitted in January 2012, one article hypothesizes that Parkinson's disease may be caused by exposure to U.S. nuclear weapons testing, radiation of unspecified type, or nerve agents and the other asserts a relationship between Parkinson's disease and exposure to non-ionizing radio frequency radiation.  

None of the submitted treatise evidence constitutes competent scientific or medical evidence supporting the Veteran's assertion that Parkinson's disease is a radiogenic disease.  None provides scientific studies or findings associating Parkinson's disease with exposure to ionizing radiation.  The articles that do suggest a link between radiation and Parkinson's disease either refer to non-ionizing radiation or are not from a scientific or medical journal.  One article is from a blog on peace and covert military action, which the Board finds is not competent scientific evidence.  Another appears to be an advertisement for a product.  Since Parkinson's disease is not a radiogenic disease as enumerated in the regulation, or as shown by competent scientific or medical evidence, consideration of service connection under 38 C.F.R. § 3.311 is not warranted.

Third, service connection may be granted under 38 C.F.R. § 3.303(d) when it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  As discussed above, there is no competent scientific or medical evidence of record to support the Veteran's contention that his Parkinson's disease is the result of exposure to ionizing radiation during active service and consideration of service connection under 38 C.F.R. § 3.303(d) is not warranted.

Service connection may, in some circumstances, also be established on a direct basis.  Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1133; 38 C.F.R. §§ 3.307, 3.309.

In the present case, the Veteran's service treatment records (STRs) do not show, nor does the Veteran assert, a diagnosis of Parkinson's disease during the Veteran's active service.  Likewise, the STRs do not indicate, nor does the Veteran assert, a relevant in-service injury, other than exposure to ionizing radiation.  Moreover, the Veteran has not been shown to have the experience, training, or knowledge necessary to make a competent finding as to the etiology of his Parkinson's disease, and the Board finds that such is outside the competency of a lay person.  Barr v. Nicholson, 21 Vet. App. at 307 (lay persons generally "are not competent to opine as to medical etiology or render medical opinions"); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 452 (2007) (noting that some disabilities are not "capable of lay diagnosis"); but see Jandreau, supra ("Lay evidence can be competent and sufficient to establish a diagnosis of a condition when [the] layperson is competent to identify the medical condition.").

Consequently, entitlement to service connection for Parkinson's disease is not warranted.
  
As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for Parkinson's disease, the benefit-of-the-doubt rule does not apply, and the claim is denied.  See 38 U.S.C.A § 5107.


ORDER

The appeal is denied.



____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs