Citation Nr: 1754530	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  14-07 396	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for Parkinson's disease (claimed as trouble swallowing/choking, hand tremors, walking disturbance and loss of voice), to include due to herbicide exposure, such as Agent Orange.


REPRESENTATION

Veteran represented by:	Pennsylvania Office of the Deputy Adjutant General for Veterans' Affairs


ATTORNEY FOR THE BOARD

J.T.Stallings, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1961 to October 1964.

This matter originally came before the Board on appeal from a February 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, PA.

In his January 2014 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge at the RO by way of videoconference. He subsequently withdrew his hearing request in June 2017.


FINDINGS OF FACT

1. The Veteran did not serve in the Republic of Vietnam during the Vietnam Era and Service Department records do not support exposure to herbicides.

2. Parkinson's disease was not present in service and is unrelated to an injury, disease, or event in service.


CONCLUSION OF LAW

Parkinson's disease was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) the 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).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 
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 claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Initially, the Board acknowledges that the Veteran has a current disability of Parkinson's disease, diagnosed in October 2009, verified and treated several times throughout the claims file. 

However, based on a review of the record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for Parkinson's disease. The reasons are as follows. 

IIa. Herbicide Exposure

There are statutory presumptions and VA regulations implementing them, that are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d) (2017). 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 U.S.C. § 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. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). 

In the case of a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, 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) (2017). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). 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. Id.

These disease include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease (including 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 leukemia (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). Ischemic heart disease associated with herbicide agent exposure in service for VA presumptive service connection purposes does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke. See 75 Fed. Reg. 53,202 (Aug. 31, 2010).

The Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 - 46 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996).

The diseases listed at 38 C.F.R. § 3.309(e) 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 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 fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009).

The Veteran's does not meet the criteria for service connection under the Agent Orange presumption.

The VA regulations are very specific as to the locations, periods of service and diseases that qualify for the Agent Orange presumption. While the Veteran has a disability, Parkinson's disease, that qualifies for the presumption and was active duty during the time period allotted under the presumption, he at no point in his military service was stationed or documented in a location covered under the Herbicide Exposure or Agent Orange presumption. 

In regard to the Veteran's contention that he was directly exposed to herbicide agents while stationed in Alaska, the Board notes that DoD has registered several locations where herbicides, including Agent Orange, were tested or deployed and Alaska is not on the list. See Herbicide Tests and Storage in U.S., U.S. Dept. of VA Public Health, (http://www.publichealth.va.gov/exposures/agentorange/ locations/tests-storage/usa). 

The Board has also considered the Veteran's allegation that he was exposed to Agent Orange just based on handling equipment and aircraft that had been in Vietnam during his service. However, such bare allegation without objective support is not sufficient to establish herbicide exposure. This is also contradicted by a thorough military records search that was negative for any type of Agent Orange exposure during the Veteran's active duty service. Accordingly, the Veteran's assertion of herbicide exposure is insufficient to establish any actual exposure to Agent Orange.

Therefore, with the lack of exposure to herbicides, the evidence of record does not show that the Veteran is entitled to the herbicide exposure presumption for his Parkinson's disease and therefore cannot be service connected on that basis. 

IIb. Chronic Disease Presumption 

The Veteran's claim cannot be granted service connection as a chronic disease as well. 

Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307 (2017). 

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2017). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The preponderance of the evidence is against a finding that Parkinson's disease was shown or diagnosed in service or manifested within one year of service discharge. There are also no complaints of symptomology of Parkinson's in the Veteran's service treatment records or again within one year of service. In fact, at the Veteran's separation examination in September 1964 there were no complaints of any symptomology connected to Parkinson's disease at that time. 

Therefore, with a lack of competent evidence of a connection to or within one year of service, as far as diagnosis and symptomology, the Board finds that the Veteran's claimed disability cannot be service connected as a chronic disease either. 

IIc. Direct Service Connection

In affording all benefits to the Veteran, the Board has also considered service connection on a direct basis as well. However, the disability cannot be connected on this basis as well. 

The only potential nexus provided in the evidence is through exposure to herbicides, particularly, Agent Orange, and as discussed above, the Board finds that the Veteran was not exposed to herbicides during his service. Also, the Veteran's diagnosis for Parkinson's disease was not until October 2009, many years after service. Not only did this disability not manifest to a compensable degree within one year following service discharge, but this evidence also tends to establish that the Veteran's claimed disability did not have its onset in service. The passage of many years between service separation and medical documentation of a disability tends to weigh against a finding that a disease or injury had its onset in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). 

Additionally, there is no competent evidence attributing the Veteran's disabilities to service. Although the Veteran's treating physician provided a medical opinion in March 2013 that the Parkinson's disease is an Agent Orange exposure condition and the Veteran's duties could have exposed him to Agent Orange, these are potential circumstances, not supported by factual evidence. While it is true the physician is able to observe the Veteran's current medical condition, his opinion concerning the Veteran's current disability's connection to active duty service is predicated on the Veteran's subjective reports of his military history. Therefore, his opinion is not based in evidentiary fact or supported by the Veteran's service treatment or personnel records. As stated above, there is no evidence of any herbicide exposure. Simply put, the Veteran's testimony concerning his claimed in-service exposure is not supported by the facts in evidence. Because the private physician's opinion is based on an inaccurate factual premise, and is otherwise unsupported by sufficient rationale, the Board affords it no probative weight. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (A bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a medical professional).

Also, the Veteran is not competent to establish the etiology of a complex disease process and therefore his statements that he believes his Parkinson's is related to service are insufficient to establish a nexus. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board takes note of the research and articles that the Veteran has provided about commercial herbicides that were potentially used in Alaska during the time he was stationed there and the chemical dump that was present, but the preponderance of the evidence is against a finding that the Veteran was exposed to tactical herbicides such as Agent Orange, which are the herbicides covered under VA regulations, while stationed there. Therefore, this information is also insufficient to establish a nexus to his military service. 

"It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009).The most probative and credible evidence establishes that the Veteran's claimed Parkinson's disease is not related to service.

Because the preponderance of the evidence is against the claim for entitlement to service connection for Parkinson's disease for all the reasons described above, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for Parkinson's disease (claimed as trouble swallowing/choking, hand tremors, walking disturbance and loss of voice), to include due to herbicide exposure, such as Agent Orange, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs