Citation Nr: 1333848 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 13-01 726 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for Parkinson's disease, claimed as due to herbicide exposure. REPRESENTATION Appellant represented by: J. William Parker, III, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from October 1970 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 decision by the RO. In January 2013, the Veteran withdrew his request for a Decision Review Officer (DRO) hearing. In August 2013, the Veteran testified by way of a videoconference hearing before the undersigned Veterans Law Judge (VLJ). At that time, the record was held open for 30 days for the submission of additional evidence. The evidence was received in September 2013, but was not accompanied by a waiver of RO jurisdiction. Given the favorable disposition herein, the Veteran is not prejudiced by consideration of this evidence. See 38 C.F.R. § 20.1304 (2012); Bernard v. Brown, 4 Vet. App. 384 (1993). The VBMS and Virtual VA folders have been reviewed. 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 is shown as likely as not to have served in the Republic of Vietnam during the Vietnam era. 2. The currently demonstrated Parkinson's disease is shown as likely as not be due to the Veteran's presumed exposure to herbicides while serving in the Republic of Vietnam. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the disability manifested by Parkinson's disease is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(e) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable decision in this case, a detailed discussion of how VA satisfied its duties to notify and to assist is not required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis In May 2011, the RO denied service connection for Parkinson's disease. The Veteran disagreed with the decision and perfected this appeal. The RO had previously denied service connection for Parkinson's disease, most recently in August 2007. Ordinarily, a final RO rating decision may not be reconsidered on the merits unless it is shown that the previous rating decision had clear and unmistakable error (CUE) or unless new and material evidence is received to reopen the claim. 38 U.S.C.A. § 7105(c) (West 2002). However, when a provision of law or regulation creates a new basis of entitlement to benefits, an applicant's claim of entitlement under such law or regulation should be considered de novo, or as a "new" claim, even though it is based on essentially the same facts as those in a previously adjudicated claim. Spencer v. Brown, 17 F.3d 368, 372 (Fed. Cir. 1994), aff'g 4 Vet. App. 283, 288-89 (1993). Parkinson's disease was added to the list of diseases associated with herbicide exposure effective August 31, 2010. See 75 Fed. Reg. 53216 (August 31, 2010). As such, the Board need not consider whether new and material evidence has been received sufficient to reopen the claim. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law establishes a presumption of service connection for disease associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam War shall be presumed to have been exposed during such service to herbicide agents, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to herbicide agents shall be the last date on which he served in Vietnam during the Vietnam era. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation to Vietnam. Id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) 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. The current list of diseases includes Parkinson's disease. 38 C.F.R. § 3.309(e). A Veteran or other lay person is competent to report on that of which he or she has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board notes that "competency" differs from "credibility" as well as the weight given to different evidence. Significantly, "competency" is a legal concept determining whether testimony (i.e., the Veteran's lay statements) may be heard and considered, while "credibility" is a factual determination going to the probative value of the evidence after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Layno at 469). 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 appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The evidence of record shows that the Veteran was diagnosed with Parkinson's disease in approximately 2002. Thus, there is evidence of current disability. The pertinent question in this case is whether the Veteran had service in the Republic of Vietnam. In various statements and testimony, the Veteran asserted that, in approximately July 1972, he was given orders to Vietnam. Because his wife was pregnant, his departure was delayed until December 1972 when he flew to the Republic of Vietnam. He testified that he was support group help. He further testified that he was sent to Korea in approximately February or March 1973. The service department indicated that there was no evidence in the Veteran's file to substantiate service in the Republic of Vietnam and that there were no records of exposure to herbicides. The Veteran argues that his service records are not accurate. The DD Form 214 documents service in the Air Force as an inventory management specialist and shows one year of foreign service. It lists "Indochina or Korea service since August 5, 1964" as 365 days. Significantly, the Veteran received various awards, to include the Armed Forces Expeditionary Medal (AFEM), and the Vietnam Service Medal (VSM). The AF Form 7, Airman Military Record, appears to be incomplete. That is, it does not document all awards listed on the DD Form 214 or the authority therefore. Regarding the chronological listing of service, there are no entries after February 1971. The available Performance Reports indicate that the Veteran was assigned to the 3rd Supply Squadron at Kunsan Air Base, Korea for the period from November 16, 1972 to August 21, 1973 and from August 22, 1973 to November 25, 1973. The initial evaluation period, which would encompass approximately 278 days, was identified as being only 159 days. The service treatment records do not show that the Veteran received treatment at any military facility in the Republic Vietnam, but do document that he was treated at the U.S. Air Force Hospital, Kunsan, Korea in February 1973. The Veteran's attorney has presented numerous arguments in support of the claim. First, he argues that, pursuant to Executive Orders 10977 and 11231, the only explanation for the Veteran receiving both the VSM and the AFEM was that he separately performed service in the Republic of Vietnam as well as that in Korea. Second, the attorney argues that the 159 day period referenced in the initial evaluation report reflects the entire performance period in Korea and shows that remainder of the time is consistent with service in the Republic of Vietnam, as reported by the Veteran. Information from the Air Force Personnel Center shows that the Vietnam Service Medal is "awarded to all service members who between July 4, 1965 and March 28, 1973, served in the following areas of Southeast Asia: in Vietnam and the contiguous waters and airspace; in Thailand, Laos, or Cambodia or the airspace thereof and in the direct support of military operations in Vietnam." Significantly, in support of his claim, the Veteran also submitted lay affidavits. A September 2013 statement from his ex-wife indicates that their daughter was born in October 1972 and that the Veteran left for Vietnam when their daughter was approximately 3 weeks old. She indicated that she wrote letters to him in Vietnam and also received letters from him. After Vietnam, she added, he went to Korea. Given the incomplete information in the service records, the Board is unable to determine the authority or basis for awarding the Veteran the VSM. A September 2013 letter from the National Personnel Records Center (NPRC) to the Veteran indicates that "[a]fter an extensive search, orders issuing the Air (sic) Force Expeditionary Medal and the [VSM] were not located in the file." Under the particular circumstances of this case, however, the Board finds the attorney's arguments persuasive. Additionally, the Veteran has been largely consistent in his statements and testimony as to the circumstances of his service and the Board finds his statements credible. The Veteran's statements are also supported by the affidavit of his ex-wife and the Board finds no reason to question her credibility. Thus, resolving reasonable doubt in the Veteran's favor, service in the Republic of Vietnam during the Vietnam era is conceded. See 38 C.F.R. §§ 3.102; 3.307(a)(6)(iii). In sum, the Veteran is presumed to have been exposed to Agent Orange and Parkinson's disease is associated with herbicide exposure. Presumptive service connection is warranted. See 38 C.F.R. §§ 3.307, 3.309(e). ORDER Service connection for Parkinson's disease is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs