Citation Nr: 1327412	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  12-11 773	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming


THE ISSUE

Entitlement to service connection for Parkinson's disease, to include as secondary to herbicide exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from July 1950 to January 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming.

The Board additionally notes that the Veteran's electronic Virtual VA file has been reviewed in conjunction with the adjudication of the claim currently on appeal.

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. Affording the Veteran the benefit of the doubt, he likely did set foot in the Republic of Vietnam during his military service and, thus, was exposed to herbicides.

2. The Veteran is currently diagnosed with Parkinson's disease.


CONCLUSION OF LAW

Service connection for Parkinson's disease has been established.  38 U.S.C.A. 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000

As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). 

In the instant case, the Veteran's claim for entitlement to service connection for Parkinson's disease has been granted herein.  As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial.

II. Merits of the Claim

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service.  38 C.F.R. § 3.303(d). 

The Veteran's service treatment records do not indicate any in-service complaints, treatment or diagnosis of Parkinson's disease.  The Veteran does not claim he incurred any of these disorders while on active duty.

Rather, the Veteran claims his military service included in-land service in Vietnam, exposing him to Agent Orange herbicides.  He believes because of that exposure, he developed Parkinson's disease.

The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection due to exposure to herbicide agents for veterans who have one of several diseases and served on active duty in Vietnam during the Vietnam Era.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6) and 3.309(e). 

Service in Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  Id. 

A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during the period of service.  Parkinson's disease is included on this list. 

Based on the Veteran's claim that he was exposed to Agent Orange herbicides during his military service the Board concludes the crucial question here is whether the Veteran had service in Vietnam sufficient to raise the presumption of exposure to Agent Orange.  The Board concludes he did. 

The Veteran's service personnel records reflect he served on the USS Coral Sea with the Navy.  A statement of commendation from the Secretary of the Navy recognized the USS Coral Sea for its participation in combat operations in Southeast Asia.  The Veteran's personnel records, however, do not specifically confirm the Veteran ever set foot on the soil of Vietnam or in the inland waters of Vietnam. 

The Veteran claimed under sworn testimony before the Board that he was in Vietnam while escorting a US Representative back to the ship.  He specifically indicated he set foot on the actual soil of Vietnam, albeit for short periods of time.  He stated he was in downtown Saigon and provided photographs taken during that time.  The Veteran also submitted a copy of a postcard and letter dated September 1967 and October 1967, respectively, recounting his visit to Saigon and Da Nang.

The Veteran's testimony is generally consistent with his personnel records, which indicate he was onboard the USS Coral Sea off the shores of Southeast Asia. 

There is nothing specifically in the record raising doubt of the Veteran's credibility. As such, the Veteran is entitled to the benefit of the doubt and Vietnam in-country presence during his military service is conceded.

The Board concludes that the Veteran is entitled to the presumption of herbicide exposure as contemplated under 38 U.S.C. § 1116(f).  Parkinson's disease, moreover, is a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e). 

Where a disease is associated with in-service herbicide exposure, as is the case here, service connection is warranted if the disease manifests to a degree of 10 percent or more at any time after service.  See 38 C.F.R. § 3.307(a)(6)(ii).  The second relevant inquiry here, then, is whether the Veteran's Parkinson's disease, is or was at a compensable level under the relevant law at any time since service.  Id.  The Board concludes it is.

Parkinson's disease is rated under Diagnostic Code 8004 where a 30 percent disability rating for ascertainable residuals represents the minimum rating for paralysis agitans.  38 C.F.R. §§ 4.120, 4.124a, Code 8004 and Note to Codes 8000-8025 (2012).  Paralysis agitans is also known as Parkinson's disease.  Dorland's Illustrated Medical Dictionary 972 (26th ed. 1990).  

The objective medical evidence of record indicates the Veteran has been diagnosed with Parkinson's disease.  A January 2012 VA treatment record reported that the Veteran's Parkinson's disease was "quite pronounced" and has been ongoing for about 10 years.  Accordingly, the severity of the Veteran's currently symptomatology would support a compensable rating.

The evidence thus being in favor of the Veteran, the Board concludes that service connection for Parkinson's disease is warranted.


ORDER

Entitlement to service connection for Parkinson's disease, to include as secondary to herbicide exposure, is granted.



____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs