Citation Nr: 1700622 Decision Date: 01/10/17 Archive Date: 01/18/17 DOCKET NO. 12-31 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for Parkinson's disease. 2. Entitlement to service connection for ischemic heart disease (IHD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Showalter, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to October 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Milwaukee, Wisconsin Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claim. See 38 C.F.R. § 3.159. The Veteran alleges that his IHD and Parkinson's disease are due to exposure to herbicides, to include Agent Orange, while serving in Guam. In a September 2010 private opinion, his private physician opined that the Veteran's Parkinson's disease may also be due to exposure to pesticides while in service. The VA Adjudication Procedure Manual provides procedures for verification of exposure to herbicides in locations other than the Republic of Vietnam, Thailand, or the Demilitarized Zone in Korea. See M21-1, Part IV, Subpart ii, Chapter 1, Section H, 7(a). Specifically, if the Veteran alleges exposure to herbicides in other locations, like Guam, he should be asked for the approximate dates, location, and nature of the alleged exposure. If this information is received, VA should provide the Veteran's detailed description to the Compensation Service via email to request a review of the Department of Defense (DoD) inventory of herbicide operations to determine whether herbicides were used as alleged. If the Compensation Service's review does not confirm that herbicides were used as alleged, and if sufficient information to permit a search by the Joint Services Records Research Center (JSRRC) has been provided, a request for verification of exposure to herbicides should be sent to that entity. In the initial adjudication of this claim, it is unclear if Compensation Service initially requested this information. However, the JSRRC reported there was insufficient information to specifically research the use of Agent Orange in Guam. On review of the record, the Board finds there is sufficient information to request this research from the JSRRC as the Veteran's period of service in Guam is definite, between September 1967 to March 1969. Where a period of time identified by the Veteran is longer than the two month period required by the JSRRC, the duty to assist requires VA to submit multiple 60-day record searches. See Gagne v. McDonald, 27 Vet. App. 397, 403 (2015). Further, the Veteran has provided his own testimony and secondary source evidence from internet articles and prior Board decisions that, while not precedential, are persuasive in their findings that Agent Orange or other pesticides/herbicides were used in Guam during his time in service. The Veteran alleges he was exposed while mending fences near vegetation and travelling to Andersen Airforce Base. In order to adjudicate the claim, the JSRRC must research whether or not herbicides, to include Agent Orange, or pesticides were used in Guam during the Veteran's time on the island. Because Parkinson's disease and IHD are listed among the disease in 38 C.F.R. § 3.309(e), if exposure to herbicides as defined by 38 C.F.R. § 3.307(a)(6) is established, the Veteran's Parkinson's disease and IHD may be presumptively service connected if herbicide exposure is established. Even if a Veteran is not entitled to a presumption of service connection for a given disability, the claim must nonetheless be reviewed to determine whether service connection may be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). According to a September 2010 medical opinion, the Veteran's private treating neurologist opined that the Veteran's exposure to pesticides in service was a significant contributing factor to his development of Parkinson's disease. Therefore, the Board is required to request the JSRRC to inquire whether or not pesticides were used in Guam between the dates of September 1967 and March 1969, in addition to the request for herbicides, to include Agent Orange. Therefore, if exposure to pesticides or herbicides (other than Agent Orange) is eventually confirmed, a VA examination will be necessary to determine whether Parkinson's disease and IHD are due to, caused by, or aggravated by such exposure. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request from the Compensation Service a review of the inventory of herbicide and pesticide operations maintained by the DoD to determine whether herbicides or pesticides were used or tested in Guam during the Veteran's service. If exposure is not verified by the request to Compensation Service, the AOJ should request the JSRRC verify the presence of herbicides, such as Agent Orange, or pesticides on the island of Guam for the period of September 1967 to March 1969, using different 60-day requests to cover the entire relevant service period. If either the Compensation Service or the JSRRC determine that the Veteran was exposed to Agent Orange in service, the AOJ should readjudicate the claim, noting the presumptive provisions found in 38 C.F.R. § 3.3.09(e). 2. If, however, the response from Compensation Service or the JSRRC reveals the Veteran was exposed to pesticides or herbicides other than Agent Orange, then the AOJ should arrange for an appropriate VA examination to determine whether or not the exposure to pesticides or herbicides in Guam caused or aggravated the Veteran's Parkinson's disease or IHD. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: Please identify the likely cause for the Veteran's Parkinson's disease and IHD. Specifically, is it at least as likely as not (defined as a 50% or better probability) that such disabilities were incurred in, related to, or caused by exposure to chemicals, either pesticides or herbicides, or any other incident during the Veteran's military service? The examiner must explain the rationale and reasoning for all opinions provided, citing to relevant evidence, supporting factual data and medical literature as appropriate. The examiner should also express agreement or disagreement with the September 2010 private medical opinion and provide an explanation for such agreement or disagreement. If the VA opinion provider is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. After undertaking the above actions and any other necessary development (including additional development suggested by the above), the AOJ should then review the record and readjudicate the claims. If any benefits sought remain denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative the opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).