Citation Nr: 1334332 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 13-18 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for Parkinson's disease, to include on a presumptive basis. ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from October 1970 to April 1974, including service in Thailand from June 1972 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. In deciding this appeal, the Board has reviewed the Veteran's electronic ("Virtual VA") file, in addition to his physical claims file. Virtual VA is a highly secured electronic repository used to store and review every document involved in the claims process. VA also is in the process of transitioning to an even newer electronic medium, the Veterans Benefits Management System (VBMS). In this case, there are no additional treatment records among the Veteran's paperless records in either the Virtual VA system or VBMS. FINDINGS OF FACT 1. The Veteran had active service in Thailand during the Vietnam War, and his military occupational specialty was an administrative specialist. He did not serve in the Republic of Vietnam, and was not exposed to herbicides in Thailand or otherwise in service. The Veteran's Parkinson's disease first manifest many years after service. 2. Parkinson's disease was not incurred in or aggravated by active service, nor may it be presumed to be so incurred or aggravated. CONCLUSION OF LAW The criteria for a grant of service connection for Parkinson's disease, including as due to exposure to herbicides, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties The Duty to Notify The VA satisfied its duty to notify the Veteran. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. § 5103, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159; provide that VA will notify the claimant of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant of which portion of the evidence is to be provided by the claimant, and which part VA will attempt to obtain on his behalf. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for benefits administered by the VA. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability rating and effective date elements of a claim for service connection. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that following the Veteran's September 2011 claim and prior to the initial adjudication of the claim in January 2012, the RO mailed the Veteran a letter in September 2011 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claim. This September 2011 notice satisfied VA's duty to notify the Veteran. The Duty to Assist The VA has also satisfied its duty to assist the Veteran in the development of his claim. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and service personnel records with the claims file. In October 2011 the Veteran submitted private treatment records from Dartmouth Hitchcock Medical Center, and the RO associated these private treatment records with his claim file. The RO further received private treatment records from Northeast Neurology in November 2011. The Veteran has not identified any additional private or VA treatment records aside from those that are already of record. Thus the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. 38 U.S.C.A §5103A(d) also includes a duty to provide the claimant with a VA examination when such medical information is necessary to make a decision on the claim. However, the duty to provide a medical examination in a service connection claim is limited to situations that meet the criteria of 38 C.F.R. § 3.159(c)(4)(i). Thus, the VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In November 2011, the VA provided the Veteran a medical examination addressing the nature of the Veteran's current neurological condition. The Veteran has not argued that this examination is inadequate. The Board finds that November 2011 VA examination is adequate. The examiner considered the Veteran's relevant medical history of 2010 diagnosis for Parkinson's disease, and performed a thorough physical examination providing all necessary findings to evaluate the claim for presumptive service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Although the examiner did not provide an opinion as to the relationship between Parkinson's disease and service, neither the Veteran nor the record raises a claim of entitlement to direct service connection. The September 2011 claim, October 2011 VCAA response, April 2012 notice of disagreement, and June 2013 substantive appeal all explicitly argued for presumptive service connection based on herbicide exposure working on the perimeter of Nakhon Phanom Royal Thai Air Force Base (RTAFB). Additionally, the service treatment records fail to reflect any complaints or treatment related to Parkinson's disease or any other neurological problem, and the Veteran has disavowed any in-service event or injury related to neurological problems in his April 2012 notice of disagreement and April 2013 substantive appeal. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, the record does not indicate that Parkinson's disease may be related to an in-service event or injury. As such, there is no duty on the part of VA to provide a medical examination on the theory of direct entitlement. Id. The November 2011 examination is adequate. As VA has satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or § 38 C.F.R. 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Accordingly, the Board will address the merits of the claim. II. The Merits of the Claim The Veteran seeks service connection for Parkinson's disease, including as due to exposure to herbicides in Thailand during the Vietnam Era. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. In order to establish entitlement to service connection for any disability on a direct basis, the record must contain (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). For the purposes of establishing service connection for a disability resulting from exposure to herbicides, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to herbicides, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). "Service in the Republic of Vietnam" means actual service in-country in Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii); See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (VA's requirement that a Veteran must have "stepped foot" on landmass of Vietnam or the inland waters of Vietnam for agent orange/herbicide exposure presumption is a valid interpretation of the statute). In other words, for the purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. Also presumed to have been exposed to such agents during active service are individuals who, during the Vietnam era, served in the United States Air Force at certain Royal Thai Air Force Bases (RTAFBs), including Nakhon Phanom, as a security policemen, security patrol dog handler, or member of a security police squadron, or were otherwise near the base perimeter. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(q). M21-1MR Part IV, Subpart ii, Chapter 2, Section C, paragraph 10(q) provides that this determination should be made on a facts found or direct basis. When a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including Parkinson's, shall be service connected 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. 38 C.F.R. § 3.309(e). To be service connected under this presumption, Parkinson's disease, shall have become manifest to a degree of 10 percent or more any time after service. 38 C.F.R. § 3.307(a)(6)(ii). Additionally, where a Veteran served ninety days or more of active service, and certain chronic diseases, such as Parkinson's disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Parkinson's disease is also known as paralysis agitans. Dorland's Illustrated Medical Dictionary 547, 1397 (31st ed. 2007). Paralysis agitans is classified as a "chronic disease" at 38 C.F.R. § 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A claim of presumptive service connection for a chronic condition could still prevail in spite of diagnosis beyond the one year presumptive period with a showing of continuity of related symptomatology after discharge. 38 C.F.R. §§ 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Presumptive Service Connection In his September 2011 application for service connected compensation, the Veteran specifically sought presumptive service connection for Parkinson's disease, and argued that his exposure to herbicides while serving in Thailand during the Vietnam Era caused this neurological condition. As discussed above, Parkinson's is a disease subject to presumptive service connection under 38 C.F.R. § 3.309(e). The Veteran's private treatment records from the Dartmouth Hitchcock Medical Center verify his July 2010 diagnosis for Parkinson's disease. Having determined that the Veteran has a current diagnosis for a disease subject to presumptive service connection under 38 C.F.R. § 3.309(e), the only remaining question before the Board is whether the Veteran was exposed to herbicides at Nakhon Phanom RTAFB. Also as discussed above, exposure to herbicides in Thailand requires evidence as to work along the perimeter of a RTAFB. The Veteran's service personnel file reflects that he served from June 1972 to June 1973 at Nakhon Phanom RTAFB. This service falls during the Vietnam Era as defined at 38 C.F.R. § 3.307(a)(6)(iii); and, as discussed above, Nakhon Phanom is on the list of RTAFBs where herbicides were used along the perimeter. Therefore the relevant question is whether the Veteran served on the perimeter of Nakhon Phanom RTAFB. In this case, there is conflicting evidence on this issue which must be weighed. According to his DD Form 214 and personnel file, the Veteran's military occupational specialty was that of an administrative specialist. This would suggest that he did not work on the perimeter of Nakhon Phanom RTAFB. However, the Veteran has argued in an October 2011 VCAA response, an April 2012 notice of disagreement, and a June 2013 substantive appeal that despite his military occupational specialty, he served on the perimeter of Nakhon Phanom RTAFB as part of Task Force Alpha. 38 U.S.C. § 1154(a) requires that the VA give all due consideration to all pertinent medical and lay evidence in evaluating a claim to disability. The provisions for herbicide exposure in Thailand at RTAFBs specify that the Veteran must have worked near the base perimeter, and the Veteran has offered lay testimony that he indeed worked on Nakhon Phanom's perimeter. To give this evidence all due consideration, the Board must analyze its credibility and probative value, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for rejection of any material evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). The Veteran's lay testimony is "competent" as to matters that he has actually observed or sensed and are within his "personal knowledge." Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is therefore competent to provide lay evidence as to factual matters, such as his location on Nakhon Phanom RTAFB. However, determinations of credibility are within the province of VA and must be made accordingly. Owens v. Brown, 7 Vet. App. 429 (1995). The Veteran's service personnel file supports the Veteran's assertions to the extent that he was stationed at Nakhon Phanom RTAFB from June 1972 to June 1973. The service personnel file includes his DD214, and annual performance reports. There are two performance reports from the Veteran's time in Thailand, a February 1973 performance report and a February 1974 performance report. Both record the Veteran's principal duties involving administrative functions such as typing, report compiling, and personnel record keeping. The February 1973 performance report also verifies that the Veteran was indeed assigned to Task Force Alpha. However, the description of the Veteran's role on that task force makes it clear that this was not an assignment to the perimeter of the Nakhon Phanom RTAFB. The description of the Veteran's role on Task Force Alpha specifies that he was an "awards monitor," and that he prepared personnel reports for the task force. In the evaluation of the evidence, VA adjudicators may properly consider internal inconsistencies, facial implausibility, and consistency with other evidence submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). It has also been observed that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1447, 1481 (Fed. Cir., 1997). Here the Veteran's lay testimony in the October 2011 VCAA response, April 2012 notice of disagreement, and June 2013 substantive appeal is inconsistent with the information in his service personnel records and on his DD 214. The information in the service personnel file is completely in keeping with his administrative military occupational specialty as listed on the DD 214; and in no way indicates work on the perimeter of the Nakhon Phanom RTAFB, or even work outside of an office. As such, the Veteran's assertion as to work on the perimeter of Nakhon Phanom RTAFB is not credible. The Board finds that the performance reports in the Veteran's service personnel file are the most probative evidence of record as to whether the Veteran worked on the perimeter of Nakhon Phanom RTAFB. Therefore, he cannot be presumed to have been exposed to herbicides in Thailand. The Veteran's service personnel records further demonstrate that he did not serve in the Republic of Vietnam, and he is therefore not entitled to the presumption that he was exposed to herbicide agents under 38 C.F.R. § 3.307(a)(6)(iii). The Board has also considered presumptive service connection for Parkinson's disease under 38 C.F.R. § 3.309(a) as paralysis agitans. However, here the Veteran has consistently reported April 2010 for the onset of neurological symptoms later diagnosed as Parkinson's disease. As the Veteran separated from service in 1974, this fails to satisfy the requirement at 38 C.F.R. § 3.307 for manifestation within one year, or the alternate requirement at 38 C.F.R. § 3.303(b) and in Walker, 708 F.3d at 1336 for a continuity of symptoms after service. The Northeast Neurological treatment records similarly show the onset of neurological symptoms "2 or 3 months" prior to May 2010. Therefore the evidence of record does not support a finding of presumptive service connection under 38 C.F.R. § 3.309(a). Direct Service Connection Notwithstanding the foregoing presumptive provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection for disability due to herbicide exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In other words, the fact that the Veteran does not meet the requirements of 38 C.F.R. § 3.309 does not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of direct causation, showing that his in-service exposure to an herbicide or other in-service injury caused any current disorders. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). As discussed above, the requirements for direct service connection are laid out in 38 C.F.R. § 3.303 and Shedden, 381 F.3d 1163. The Board will address each of the three elements of direct service connection in turn. Initially, as discussed above, the Dartmouth Hitchcock Medical Center's private treatment records establish July 2010 diagnosis for Parkinson's disease. Therefore the Veteran has a current disability, and has satisfied the first element of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). Next, the Board must address the element of an in-service event or injury. The Veteran's service treatment records are completely silent as to any in-service neurological signs or symptoms which could be attributed to the onset of Parkinson's disease. In fact the Veteran's March 1974 separation examination report recorded normal results of a clinical evaluation of the neurological system. Further, the Veteran has not argued that his Parkinson's had its onset in service; he has specifically disavowed any in-service event or incident related to neurological problems in his April 2012 notice of disagreement and April 2013 substantive appeal. The Northeast Neurological treatment records show that Dr. R.U.H. recorded the onset of neurological symptoms such as an intermittent tremor in the right hand "for the last 2 or 3 months" prior to a May 2010 initial neurology consultation. Therefore the evidence of record does not support a finding that the Veteran had any neurological problems or symptoms in service, and fails to satisfy the second part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). Finally, the evidence of record must show that the Veteran's current diagnosis is related to an in-service injury, event, or disease. As mentioned above, lay evidence may demonstrate the presence of any of the elements for service connection. Davidson, 581 F.3d at 1316. However, the Veteran has consistently asserted that it was his exposure to herbicides in Thailand that led to his development of Parkinson's disease, and has never cited any other facet of his service as linked to the current diagnosis for Parkinson's disease. Neither the Northeast Neurology treatment records, nor the Dartmouth Hitchcock Medical Center treatment records include any medical nexus opinion. A March 2011 statement by Dr, D.J.C. of the Dartmouth Hitchcock Medical Center specifically quotes the VA's website explaining that Veteran's who develop Parkinson's disease and were exposed to herbicides do not have to prove a connection between their disease and military service to receive VA disability compensation. This cannot be construed as a medical nexus opinion. Therefore the evidence of record does not support a finding that the Veteran's Parkinson's disease is related to an in-service injury, event, or disease; and fails to satisfy the third part of the three part test for service connection under Shedden and 38 C.F.R. § 3.303(a). The Board has also considered the benefit of the doubt rule in this case, but as the preponderance of the evidence is against the claim, the evidence is not in equipoise, and there is no basis to apply it. There is more probative value to the service personnel records, than in the Veteran's lay testimony. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Accordingly service connection for Parkinson's disease is denied. ORDER Service connection for Parkinson's disease is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs