Citation Nr: 1333531 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 12-12 228 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for Parkinson's disease. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from May 1960 to June 1980. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision of the RO in Waco, Texas. Although there were prior final denials of this claim in September 2008 and July 2009 rating decisions, the current appeal does not involve the predicate question of whether new and material evidence has been received. Effective August 31, 2010, Parkinson's Disease was added to the list of diseases presumed to be associated with herbicide exposure, and the RO readjudicated the claim on the merits pursuant to an order of a U.S. District Court in Nehmer v. Department of Veterans Affairs, No. CV-86-6161 TEH (N.D. Cal.). In reviewing this case the Board has not only reviewed the physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The Veteran had no service in the Republic of Vietnam, and was not exposed to herbicide agents during service. 3. Parkinson's disease is not listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service must be considered. 4. Parkinson's disease is not etiologically related to service. CONCLUSION OF LAW Parkinson's disease was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C.A. §§ 337, 1101, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has asserted that his Parkinson's disease is related to exposure to insecticides, pesticides, and/or herbicides during his service in Thailand, the Philippines, and South Korea, and asserted service in Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). The United States Court of Appeals for Veterans Claims (Veterans Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Certain specific conditions are considered chronic diseases under VA Law. However, Parkinson's is not listed among these diseases. 38 C.F.R. § 3.309(a). Accordingly, the corresponding provisions regarding a presumption of service connection for such conditions that become manifest to a compensable degree within a year of service separation and provisions regarding continuity of symptomatology after service are not applicable. Regarding herbicides, applicable law provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). Parkinson's disease is deemed to be associated with herbicide exposure under VA law and shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). A disease associated with exposure to herbicide agents listed in § 3.309 will be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service, provided that such disease shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran was not present in Vietnam during service and that he was not actually exposed to herbicides during service. The Board also finds that the Veteran's Parkinson's disease is not etiologically related to service. The evidence regarding whether the Veteran was present in Vietnam includes the Veteran's service personnel records, service treatment records, and the Veteran's written assertions. The Veteran asserts that, although not officially stationed in Vietnam, he traveled to Saigon in 1968 and 1973. The Board has carefully considered this assertion. The service treatment records are present in the claims file as are the service personnel records. Those records document each assignment during the Veteran's service; however, they do not reflect any assignment, including temporary assignments, in Vietnam. In January 2011, the RO received a response from the National Personnel Records Center to its request for information regarding the Veteran's asserted service in Vietnam. The response was that the NPRC was unable to determine whether the Veteran served in Vietnam. The RO certified in July 2011 that it had insufficient information to send to the Joint Service Records Research Center or the National Archives and Records Administration to attempt to verify the Veteran's claim as to service in Vietnam. The Veteran has not submitted or identified any corroborating evidence, such as copies of official orders, statements of fellow service personnel who may have known about or witnessed his presence in Vietnam, statements from family members who may have known about his presence in Vietnam or received letters or telephone calls from the Veteran from Vietnam, or photographs taken of the Veteran in Vietnam. Therefore, the RO was correct in its finding that there is insufficient information to send to the Joint Service Records Research Center or the National Archives and Records Administration to attempt to verify the Veteran's claim as to service in Vietnam (it is important for the Veteran to understand that there is simply nothing for these organizations to find based on the facts of this case). The only evidence addressing the Veteran's presence in Vietnam is the Veteran's assertion. The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board is within its province to weigh such testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Here, the Board finds that while the Veteran is competent to describe his locations during service, his assertion that he was present in Vietnam is not accurate. The Board bases this finding, in part, on the lack of any corroborating evidence, but primarily on the inconsistencies in the Veteran's accounts of herbicide exposure throughout the period of his claim. The Board finds it significant that, in the initial references to Parkinson's disease, the Veteran did not assert that he was present in Vietnam. He informed a VA clinician in June 2006 that he was exposed to pesticides and insecticides during service. He did not identify herbicides at all, and he did not assert that he was present in Vietnam. Further, in a claim filed in November 2007, the Veteran noted exposure to insecticides, pesticides, and herbicides, but did not assert that he was present in Vietnam (an important omission). In a September 2007 VA treatment note, the Veteran reported exposure to pesticides and insecticides during service, from 1974 to 1980, and after service, from 1982 to 1992. Again, he did not identify herbicide exposure and did not assert that he was present in Vietnam. In a June 2008 application for service connection for Parkinson's disease, the Veteran identified his assignment to Clark AFB in the Philippines from 1977 to 1978 at which time he reportedly performed insect and rodent control and "mosquito surveillance." He also identified his assignment to Osan AFB South Korea from 1965 to 1966 while they were spraying mosquito control insecticide. It is not until the current claim that the Veteran asserted that he was present in Vietnam, following the above. However, at that time, on an August 2010 VA Form 21-4138, the Veteran asserted that he changed aircraft in Vietnam in May 1968. The Veteran gave a completely different account on a January 2011 VA Form 21-4138, reporting that he flew to Vietnam for R&R in Saigon in 1968 and 1973. The Board needs to emphasize that this is not simply an additional detail, but a completely different account which cannot be reconciled with the first account, or his prior statements. On the VA Form 9, the Veteran did not mention Vietnam at all, but focused his assertions on having worked near the perimeter of the airbase in Thailand. In determining the credibility of any claimant's assertions, one of the key criteria the Board uses is consistency. An account that changes erratically with each telling or one that simply evolves over time tends to undermine the credibility of the account. This is particularly so when changes correspond to an RO or Board denial of the same claim. Here, at the time of the July 2009 denial of service connection, the Veteran had never asserted that he was present in Vietnam. This assertion only began in the context of the current claim. In this case, the Veteran's account has been inconsistent, and these inconsistencies have not been explained. Of course, the Board acknowledges that Parkinson's disease was not an herbicide presumptive disease until August 2010; however, this does not explain the Veteran's failure to assert that he was present in Vietnam prior to the current claim. The Veteran has always asserted that his Parkinson's disease was related to either pesticides or herbicides. Presence in Vietnam during the Vietnam War has, since 1991, provided a presumption of exposure to herbicides. Thus, it is reasonable to expect that the Veteran would have reported this from the beginning and not just after the initial claim was denied. Having determined that the Veteran was never present in Vietnam during his service, the Board turns to his alternative argument, that he was exposed to pesticides or herbicides in Thailand, South Korea, or the Philippines. While the Department of Defense has confirmed the operational use, testing, and disposal of Agent Orange and other herbicides outside of Vietnam, such exposure is not presumed for any veteran. Actual exposure must be demonstrated from the record. Regarding South Korea and the Philippines, the Veteran does not contend that he was exposed to Agent Orange or any herbicide at these locations. His assertions relate to routine spraying for mosquitos and rodents involving pesticides. There is no presumption of service connection or exposure regarding pesticides or insecticides. Regarding Thailand, the Veteran asserts that he worked on the flight line of Udorn Air Force base in Thailand from September 1967 to August 1968. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. Therefore, when herbicide related claims from Veterans with Thailand service are received, VA is instructed to evaluate the treatment and personnel records to determine whether a veteran's service activities involved duty on or near the perimeter of the military base where that veteran was stationed. See Veterans Benefits Adjudication Manual M21-1MR IV.ii.2.C.10.q (Manual). The Department of Defense has informed VA that commercial herbicides, rather than tactical herbicides, were used within the confines of Thailand bases to control weeds. However, these commercial herbicides have been, and continue to be, used on all military bases worldwide; and they, therefore, do not fall under the VA regulations governing exposure to tactical herbicides such as Agent Orange. There is some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides. As such, VA has determined that a special consideration of herbicide exposure on a facts found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam War were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a US Air Force veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. VA is directed that if evidence shows that a veteran performed duties along the military base perimeter, herbicide exposure should be acknowledged on a facts found or direct basis. However, if the available evidence does not show service along the base perimeter and does not otherwise indicate exposure to tactical herbicides, further development is required consistent with the Veterans Benefits Adjudication Manual M21-1MR IV.ii.2.C.10.q. Here, the Veteran does not assert that he performed any of the duties specified in the Manual provisions cited above. He has asserted that he was stationed on the flight line; however, he has described no specific duties or assignments that would involve contact with the perimeter of the base. The Veteran's representative has asserted in written argument that the Veteran "provided sworn oral testimony that he spent the majority of his duty on the flight line and in and around the perimeter of Udorn AB." However, the Veteran has not provided sworn oral testimony at any time pertinent to his claim, and he indicated on the VA Form 9 that he did not want a hearing. Moreover, he has not directly asserted that he was exposed to the perimeter of the base. His VA Form 9 does note the VA provisions governing use of herbicides at the perimeter of air bases in Thailand, but his only assertion was that he worked in the Tactical Unit Operations Communication Center on the flight line. He did not describe any exposure to the perimeter of the base. The Veteran's service personnel records reveal that his duty assignments at Udorn Air Base were clerical in nature and there are no assignments of the type specified in the Manual or that would otherwise suggest exposure to the perimeter of the base. A citation accompanying the award of the Air Force Commendation Medal notes that his assignment as a Flight Leader in the Tactical Unit Operations Communications Center involved handling vital, highly sensitive messages in direct support of tactical air operations. The Veteran does not specifically assert that he had an assignment similar to the types specified in the Manual, and he has not described in any detail how he was exposed to the perimeter of Udorn Air Base. The Manual provisions make clear that mere presence on a base in Thailand does not invoke the presumption of exposure to herbicides. The Board therefore concludes that the herbicide presumptive provisions do not apply to the Veteran's service in Thailand. While the Board has determined that the herbicide presumptive provisions do not apply in this case, in Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). As such, the Board must also determine whether his Parkinson's disease is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). The Veteran does not contend that his Parkinson's disease began in service, or that he was treated for or complained of any symptoms associated with Parkinson's disease in service. The service treatment records do not reflect any pertinent findings or symptomatology. The first mention of Parkinson's disease in the record comes from a June 2004 private treatment record, more than 20 years after service separation, which reflects a complaint of unsteady balance for the past 2 months, as well as a staggering gait and slurred speech. The examiner wrote that he suspected early Parkinson's disease. This was confirmed in subsequent treatment reports. As discussed above, the Veteran's only assertions regarding herbicides relate to his service in Thailand and his contention that he was present in Vietnam. The Board has found that the Veteran was never present in Vietnam and that he was not actually exposed to herbicides in Thailand. The Veteran's descriptions regarding exposure to insecticides and pesticides are not clear. Regarding Osan AFB in South Korea, he does not assert that he made direct contact with insecticide, only that "they" were spraying it there. The Veteran is competent to describe the fact that he observed something being sprayed; however, the Board does not presume that he is competent to identify the chemical being sprayed. He has not provided any reliable information regarding what chemical was actually being sprayed, such as having seen writing on the sprayer or containers, having asked the individual spraying what was being applied, etc. The Board finds his mere assertion that insecticide was being sprayed to be unreliable. Regarding the Veteran's assertion that he performed insect and rodent control and mosquito surveillance at Clark AFB in the Philippines, while this is in part verified, it does not support actual exposure to pesticides or insecticides. The Veteran's service personnel records reveal that he participated in 3 separate mosquito surveys. He planned and initiated a comprehensive, long-term survey of mosquito immatures at Clark Air Base. This involved collecting mosquito larvae and pupae, rearing them in the laboratory, and then shipping them to a taxonomist. However, none of descriptions of the Veteran's duties notes or suggests that he was using insecticide. To the contrary, his duties involved catching and raising mosquitoes, not killing them. Regarding rodent and insect control, these assertions do not reliably identify any specific or likely chemical exposure. The Board also notes, as discussed above, the changing nature of the Veteran's assertions regarding exposure to various chemicals in service. As already described, these inconsistencies undermine the credibility of the Veteran's assertions regarding the events of service. As insecticide/pesticide exposure is not reliably demonstrated, the Board finds that there was no such exposure in service. In addition, there is no medical evidence that purports to relate Parkinson's disease otherwise to service, to include claimed exposure to pesticides or insecticides in service. The Board acknowledges the Veteran's assertion that his Parkinson's disease is related to service, to include exposure to pesticides and insecticides therein. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), however, establishing the etiology of Parkinson's disease falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As the Veteran was not present in Vietnam and was not actually exposed to herbicides, pesticides, or insecticides in service, and as there is no competent evidence purporting to relate his Parkinson's disease to service, the Board finds that service connection for Parkinson's disease is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veterans Claims Assistance Act of 2000 (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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Veterans Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the decision on appeal did not stem from an application for benefits, but was prompted by a general review of prior claims in accordance with the Nehmer decision. The Veteran was sent a letter in February 2011 which advised him of the information and evidence necessary to substantiate service connection. That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the February 2011 letter was sent to the Veteran prior to the August 2011 decision, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the Veteran in this case. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, and the Veteran's written assertions. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Veterans Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's Parkinson's disease is related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Moreover, the Board has specifically found that he was not exposed to herbicides, pesticides, or insecticides during service. Accordingly, the Board finds that referral for a VA medical examination is not warranted. ORDER Service connection for Parkinson's Disease is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs