Citation Nr: 1801773 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 16-16 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for Parkinson's disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from March 1961 to February 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Although the RO in a July 2014 rating decision confirmed and continued the denial of service connection for heart disease and Parkinson's disease and treated the claims as reopened claims, the Board finds that a statement from the Veteran in January 2014, within one year of the RO's October 2013 decision, requesting reconsideration of the RO's decision to deny his claims for ischemic heart disease and Parkinson's disease, constitutes a valid notice of disagreement (NOD) with the October 2013 decision. The Board notes that the current VA regulations require the filing of a VA Form 21-0958 to initiate a NOD are applicable to claims and appeals filed on or after March 24, 2015. See 38 C.F.R. § 20.201; 79 Fed. Reg. 57660 -57698 (Sept. 25, 2014). Here, as the Veteran's claim was received in January 2013, which is prior to March 24, 2015, the NOD need not be filed using the specific form required by the Secretary, VA Form 21-0958. Therefore, the October 2013 decision is considered the decision on appeal and the Board will proceed with adjudication on the merits without addressing any threshold issue of whether new and material evidence has been received to reopen the claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran was not actually or presumed to have been exposed to designated herbicide agents. 2. The Veteran's ischemic heart disease is not shown to be causally or etiologically related to any disease, injury, or incident in service. 3. The Veteran's Parkinson's disease is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 U.S.C.A. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for Parkinson's disease have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 U.S.C.A. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify has been met. See VA correspondence dated in May 2013 and May 2014. All identified and available authorized records relevant to the matter, to include treatment records and evaluations, have been requested or obtained. VA has met all statutory and regulatory notice and duty to assist provisions. The Veteran has not alleged prejudice with regard to VA's statutory and regulatory notice and duty to assist provisions. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . ."). Analysis A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to provide service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including cardiovascular-renal disease and an organic disease of the nervous system, may be presumed to have been incurred in service if they manifest to a compensable degree within one year following the active military service. 38 U.S.C.A.§§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Moreover, for such diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an initial matter, the Veteran does not contend, and the evidence of record does not show, complaints, diagnosis, or treatment of heart disorder or Parkinson's disease during or within one year of separation from service. Therefore, service connection is not warranted under such theories of service connection. Post-service treatment records dated many years after active service show ischemic heart disease and Parkinson's disease. See, e.g., June 2012 private medical records, January 2013 physician's statement, May 2014 ischemic heart disease Disability Benefits Questionnaire (DBQ), and May 2014 Parkinson's disease DBQ. The Veteran himself reported that his Parkinson's disease began in July 2010 and the ischemic heart disease began in July 2005. See January 2013 claim. The Veteran does contend that he has Parkinson's disease and ischemic heart disease due to Agent Orange exposure during his service in Thailand. Id. The Veteran explained that he was based in Japan and was flown to Thailand to work in a ground communications center from May 28, 1963 to July 5, 1963. Service personnel records in May 1963 show that the Veteran had temporary duty orders in Bangkok, Thailand for 30 days. His DD 214 Form shows that he served with the U.S. Army. The law establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include ischemic heart disease and Parkinson's disease, if manifested to a compensable degree at any time after active service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). In this case, the Veteran has not alleged service in the Republic of Vietnam, and there is otherwise no evidence that he served there. Therefore, herbicide exposure may not be presumed based on service in Vietnam. See 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran is not precluded, however, from proving actual exposure. See Combee v. Brown, 5 Vet. App. 248 (1993); 38 C.F.R. § 3.303(d). VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain Thailand military bases during the Vietnam era. See M21-1 Adjudication Procedures Manual, Part IV, Subpart ii, Chapter 1, Section H, Topic 5. VA's Adjudication Procedures Manual directs, in pertinent part, that for U.S. Army veterans who served at the Royal Thai Air Force Bases (RTAFBs) during the Vietnam era, the M21-1 provides that herbicide exposure may be conceded on a facts-found basis if the veteran provides a statement that he or she was involved in perimeter security duty, and there is additional credible evidence supporting this statement. For U.S. Army veterans who served at a U.S. Army base in Thailand during the Vietnam era, the M21-1 provides that herbicide exposure may be conceded on a facts-found basis if the veteran served as a member of the military police unit, or with a military police occupational specialty. Otherwise, the M21-1 directs that the Veteran should be asked for the approximate dates, location, and nature of alleged exposure, and if sufficient information is received, a request should be sent to Joint Services Records Research Center (JSRRC) for verification of exposure to herbicides. See M21-1, IV.ii.1.H.5.b. If sufficient information is not received, the case should be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. In a Memorandum dated in August 2013, a formal finding of information required for Agent Orange exposure with a claim of service connection was made, whereby it was determined that the information required to corroborate the claimed Agent Orange exposure described by the Veteran was not sufficient to send to the JSRRC. It was noted that the Veteran served in the U.S. Army as a communications specialist and had temporary duty in Thailand with the U.S. Army Signal Command Element. It was also noted that the Veteran was not assigned to any of the Royal Thai Air Force Bases and his primary duties did not include patrolling Royal Thai Air Force Base perimeters of areas regularly sprayed with herbicides for which exposure to herbicides could be conceded. In this particular case the Board acknowledges that the Veteran had temporary duties in Thailand, however the evidence does not show nor does the Veteran contend that he was involved in perimeter duties. Therefore, herbicide exposure may not be conceded under the M21-1 provisions. To the extent that the Veteran contends that he may have been exposed to Agent Orange while traveling from Japan to Thailand as he handled skids of material in Japan and Taiwan believed to be Agent Orange, his statement that he handled material is both competent and credible. However, although he thinks that the material was Agent Orange he is not competent to make the determination that it indeed was Agent Orange nor does the evidence of record in any way indicate that he handled Agent Orange at any time during service. Thus the Board finds that actual herbicide exposure has not otherwise been established. Notwithstanding the foregoing, the Veteran is not precluded from seeking service connection on a direct theory of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120-23 (2007); Combee, supra. The Board acknowledges that the Veteran submitted two statements from his doctors in support of his claim that he has ischemic heart disease and Parkinson's disease due to Agent Orange exposure in Thailand. In a physician's statement received in January 2013, Dr. G.P. provided a diagnosis of ischemic heart disease and Parkinson's disease. He checked the box indicating that he reviewed the service medical records and feels that the condition is related to the current diagnosis. However, he did not check the box indicating the condition could have as likely as not been caused or aggravated by the Veteran's active duty service time. Similarly in an October 2012 physician's statement, Dr. N.D. provided a diagnosis of Parkinson's disease and also only checked the box indicating that she reviewed the service medical records and feels that the condition is related to the current diagnosis. Although these opinions are somewhat unclear, assuming without conceding that Dr. G.P. and Dr. N.D were opining that ischemic heart disease and Parkinson's disease are related to the Veteran's exposure to Agent Orange during service, the opinions are based on the Veteran's reported history of Agent Orange exposure during service, which as discussed above is not verified. A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Based upon the evidence of record, the Board finds that ischemic heart disease and Parkinson's disease were not manifest during active service and that the preponderance of the evidence fails to establish that they are etiologically related to service. Consideration has been given to the Veteran's personal assertion that his ishemic heart disease and Parkinson's disease are related to service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to probative lay comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Accordingly, the lay evidence does not constitute competent evidence and lacks probative value. As the lay evidence is not competent the matter of whether it is credible is not reached. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for ischemic heart disease and Parkinson's disease. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the appeal is denied. ORDER Service connection for ischemic heart disease is denied. Service connection for Parkinson's disease is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs