Citation Nr: 1335502 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 13-12 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease, status post myocardial infarction, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to January 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The Veteran did not serve within the land borders or the inland waters of Vietnam and actual exposure to Agent Orange is not shown. 2. The Veteran's Parkinson's disease is not related to any injury or disease incurred in service nor can it be presumed to be due to exposure to herbicides during service in the Republic of Vietnam. 3. Coronary artery disease, status post myocardial infarction is not related to any injury or disease incurred in service nor can it be presumed to be due to exposure to herbicides during service in the Republic of Vietnam. CONCLUSIONS OF LAW 1. Service connection for Parkinson's disease is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). 2. Service connection for coronary artery disease, status post myocardial infarction is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1116, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied via a letter sent to the appellant in June 2011. The duty to assist has also been satisfied. VA has obtained the appellant's service treatment records, VA medical records and private treatment records identified by the appellant as relevant to the appeal. The Board acknowledges that the Veteran has not been provided a VA examination related to his service-connection claims. The Board finds that VA does not have a duty to provide an examination in this case. While there is evidence that the Veteran currently has Parkinson's disease and coronary artery disease, the evidence does not establish, that he had symptoms of Parkinson's disease or coronary artery disease during his service, nor does he so claim, and there is no competent and credible evidence of actual exposure to herbicides. Thus, a VA examination is not required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has not identified any other relevant evidence that has not been requested or obtained. The Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claims for service connection for at this time. II. Service Connection Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in service, or for aggravation of a preexisting injury suffered or disease contracted in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 and 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 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). In this regard, it is noted 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 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Diseases associated with such exposure include: AL amyloidosis; chloracne or other acneform diseases consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For presumptive service connection to be warranted, the herbicide-related disease shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "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 in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). VA General Counsel has determined that the regulatory definition of "service in the Republic of Vietnam" in 38 C.F.R. § 3.307(a)(6)(iii), requires that an individual actually have been present within the boundaries of the Republic of Vietnam to be considered to have served there, through inclusion of the requirement for duty or visitation in the Republic of Vietnam. VAOPGCPREC 27-97. A January 2010 VA Compensation and Pension (C&P) Service Bulletin extended the presumption of herbicide exposure based on service "in the Republic of Vietnam" to include Navy veterans who served on specific "blue water" vessels known to have conducted "brown water" operations during the Vietnam war as having served "in the Republic of Vietnam" for purposes of 38 C.F.R. § 3.307(a)(6)(iii). The bulletin provides that "[i]f a veteran's service aboard one of these ships can be confirmed through military records during the time frames specified, then exposure to herbicide agents can be presumed without further development." As discussed below, the USS Horne does not appear on this list. The evidence must show that the ship actually docked on the shore and was not anchored in an open deep-water harbor such as Da Nang, Vung Tau, or Cam Ranh Bay. Evidence of shore docking is required. See Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era, Sept. 9, 2010 (letter issued by VA Compensation and Pension Service). III. Facts and Analysis The Veteran contends that service connection for his Parkinson's disease and coronary artery disease is warranted because he was exposed to herbicides while serving on the USS Horne and the USS Halsey in the Republic of Vietnam. Specifically, the Veteran asserts that he was exposed to herbicides while docked in Da Nang Harbor and Saigon Harbor in 1968. The Veteran's service personnel records indicate that he served aboard the USS Horne (DLG-30) from June 1968 to January 1969. However, the personnel records do not contain proof the Veteran had in-country service in Vietnam. While the Veteran has reported that he also served on the USS Halsey, his service personnel records do not contain any confirming documentation. The Veteran's service personnel records indicate that the only other ship that he served on was the USS Portage (PCE 902) for active duty training from October 1966 to November 1966. The United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), where it confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. The Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the veteran's receipt of a Vietnam Service Medal (VSM). Haas, 525 F.3d at 1196. Service treatment records are negative for any complaints, findings, or treatment for Parkinson's disease or coronary artery disease. His January 1969 separation examination is negative for any heart condition and the only items noted on the examination were identifying body marks and scars. Post-service treatment records show no evidence of Parkinson's disease or coronary artery disease being diagnosed, treated, or otherwise manifested within one year of the Veteran's discharge from active service. On his claim form, the Veteran indicated that he was first diagnosed with ischemic heart disease in March 1989 and Parkinson's disease in January 2011. Private medical records indicate that the Veteran was diagnosed with coronary artery disease, status post myocardial infarction (ischemic heart disease) in December 2004 and Parkinson's disease in February 2011. A private record dated in February 2011 reflects that the Veteran gave a history of onset of a tremor one year earlier. The Veteran asserts that he "had to pull shore duties on the ground in Vietnam in Saigon Harbor." See Veteran's Statement dated November 2011. The Veteran also asserts that he was on "search and rescue duties just off the coast of Vietnam." See Veteran's Statement dated March 2012. In his substantive appeal, the Veteran indicated his belief that the USS Horne docked in Da Nang Harbor around June or July 1967 and in Saigon Harbor during 1968. In July 2011, the RO obtained a report from the Personnel Information Exchange System (PIES), which indicated that it was unable to determine whether the Veteran had in-country service in Vietnam, but that the USS Horne was in the official waters of Vietnam. PIES also confirmed that the Veteran served on the USS Horne. In January 2012, the RO obtained a report from the Joint Services Records Research Center (JSRRC) which indicated that the USS Horne Deck Logs did not show that the ship docked, transited inland waters, or that personnel stepped foot in the Republic of Vietnam. As to the Veteran's service aboard the USS Horne, that vessel is not recognized as having operated primarily or exclusively on the inland "brown water" waterways of Vietnam, nor is there any evidence establishing that it operated temporarily on the inland waterways or docked to the shore. Indeed, the JSRRC report specifically indicates that deck logs for the USS Horne do not show that the ship docked, transited inland waters, or that personnel stepped foot in the Republic of Vietnam. In response to the Veteran's statement that he had shore duties, the RO requested that the Veteran submit specific dates and evidence of Vietnam service, including buddy statements, pictures or letters to document service in Vietnam. The Veteran did not submit any documentation. Thus, although the Veteran believes that the USS Horne docked in Da Nang and Saigon Harbors, the objective evidence of record does not support that contention. Notably, while the Veteran stated that the USS Horne docked in Da Nang Harbor, the VA Adjudication Procedure Manual (M21-1MR), specifically notes that "[s]ervice aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Rahn Bay, along the [Republic of Vietnam] coast does not constitute inland waterway service or qualify as docking and is not sufficient to establish presumptive exposure to herbicides." M21-MR, IV.ii.1.H.28.h. Accordingly, the Board finds that the Veteran's service aboard the USS Horne does not equate to service "in" the Republic of Vietnam for purposes of the presumption of exposure to an herbicide agent during such service. As discussed above, while the Veteran asserted that he also served on the USS Halsey, there is no evidence in the record to confirm this service. Therefore, the Veteran is not entitled to a presumption of herbicide exposure or presumptive service connection for Parkinson's disease or coronary artery disease on the basis of herbicide exposure in Vietnam. 38 C.F.R. § 3.309. Although the provisions of 38 C.F.R. § 3.309 are not for application, the Veteran is not precluded from presenting evidence that his Parkinson's disease or coronary artery disease is related to service. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). However, as previously mentioned, service treatment records are negative for complaints or findings pertaining to Parkinson's disease or coronary artery disease. Additionally, the Veteran does not contend, and the evidence does not show, that he suffered from Parkinson's disease or coronary artery disease during service or within one year following discharge from service. There is no evidence suggesting that his Parkinson's disease or coronary artery disease is related to service on a theory other than herbicide exposure. In addition, there is no competent evidence establishing the Veteran's exposure to herbicides during service. The Veteran indicated that he was initially diagnosed with ischemic heart disease in March 1989 (more than 20 years following the Veteran's discharge from service) and Parkinson's disease in January 2011(more than 40 years following the Veteran's discharge from service). Post-service medical records indicate that the Veteran was diagnosed with coronary artery disease, status post myocardial infarction (ischemic heart disease) in December 2004 and Parkinson's disease in February 2011. No health care professional has suggested that his Parkinson's disease or coronary artery disease is related to service. Accordingly, the preponderance of the evidence is against the claims, and service connection for Parkinson's disease and coronary artery disease, status post myocardial infarction is denied. ORDER Service connection for Parkinson's disease, to include as due to herbicide exposure is denied. Service connection for coronary artery disease, status post myocardial infarction, to include as due to herbicide exposure is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs