Citation Nr: 18144195 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 16-18 076 DATE: October 24, 2018 ORDER Service connection for Parkinson’s disease is granted. FINDINGS OF FACT 1. The Veteran served in the Philippines and was exposed to commercial herbicides. 2. The Veteran currently has Parkinson’s disease and the evidence is at least evenly balanced as to whether the Veteran’s Parkinson’s disease is related to his military service to include exposure to commercial herbicides. CONCLUSIONS OF LAW The criteria for service connection for Parkinson’s disease have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied entitlement to service connection for Parkinson’s Disease. In May 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In October 2017, the Board remanded the claim to the agency of original jurisdiction (AOJ) for further development. The appeal has been returned to the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(b). Parkinson’s Disease Presumed Service Connection: Vietnam and Agent Orange Certain disorders associated with herbicide agent (Agent Orange) exposure in service are presumed to be service connected if they are manifested to a compensable degree within a specified time period. See 38 C.F.R. §§ 3.307, 3.309. If a Veteran was exposed to herbicide agents during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C. § 1116; 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; 38 C.F.R. § 3.307(d) are also satisfied. Veterans who served in Vietnam are presumed to have been exposed during such service to herbicides, including Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307 (a)(6)(iii). Certain listed diseases are presumptively service-connected in veterans exposed to herbicides agents such as Agent Orange. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). Here, although the Veteran served in the Navy during the Vietnam Era, he served in the Philippines, not Vietnam. Therefore, the presumption that the Veteran was exposed to Agent Orange and is, thus, eligible for service connection on a presumptive basis for Parkinson’s disease, is not applicable. Nevertheless, the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis. A Veteran can establish entitlement to service connection for Parkinson’s disease based on exposure to other toxins such as commercial herbicides on a direct basis by demonstrating that the exposure more likely than not caused the Parkinson’s disease. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). Direct Service Connection Service connection will be granted if the evidence demonstrates that the current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the following reasons, the Veteran satisfies all three elements of a direct service connection claim. The Veteran has been diagnosed with Parkinson’s disease, most recently on the February 2018 VA medical examination. He has thus met the current disability requirement. As to the in-service disease or injury requirement, in October 2013, VA determined that the Veteran was not exposed to Agent Orange while serving at Clark Air Force Base, Philippines because the Department of Defense list does not show any use, testing, or storage of tactical herbicide agents at Clark Air Force Base. See Information from Department of Defense on Herbicide Tests and Storage outside of Vietnam, available at https://www.publichealth.va.gov/docs/agentorange/dod_herbicides_outside_vietnam.pdf. As indicated in an April 2017 VA email from VAVBAWAS/CO/211/AgentOrange, Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. There were no combat operations in the Philippines during those years and so there was no need for Agent Orange use there. Moreover, the Philippines were not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam. Although nothing in the record demonstrates the Veteran was exposed to Agent Orange, the record does contain information that suggests that he was exposed to commercial herbicides. According to a February 2018 VA Parkinson’s Disease Disability Benefits Questionnaire (DBQ), the Veteran reported that during service he was exposed, via daily smoke, to unnamed lubricant for a year and a half. In that same questionnaire, the Veteran also reported that he was exposed to grass killing chemicals. In addition, the Veteran stated he saw dogs living in the barracks next to him being sprayed with insecticides and soaked in malathion-filled tubs. The dogs would then drip malathion on the floor and around the surrounding areas. These statements are consistent with the circumstances of the Veteran’s service during the Vietnam Era as commercial herbicides where widely used during this time. See April 2017 email. Therefore, the Veteran’s statements regarding his exposure to commercial herbicides during his service are competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Moreover, the service treatment records indicate that he was hospitalized during service for a respiratory illness. Thus, the evidence reflects that there was an in-service disease or injury. The remaining issue is whether a nexus exists between the Veteran’s Parkinson’s disease and his in-service herbicide exposure. There are conflicting medical opinions on this question. The Veteran’s private treating neurologist submitted two letters explaining the relationship between the Veteran’s exposure to commercial chemicals during service and the Veteran’s Parkinson’s Disease. The first letter is a May 2016 letter where the neurologist stated, “that Parkinson’s disease can result from exposure to various substances including drugs, pesticides, and herbicides.” In October 2017, the same neurologist wrote a second letter where he articulated that, “exposure to commercial herbicide during [the Veteran’s] military service in 1967 has >50 [percent] probability of a casual effect for development of Parkinson’s Disease.” These two opinions, taken together, reflect an opinion both that exposure to commercial herbicides can cause Parkinson’s disease and that, based on his review of the evidence and treatment of the Veteran, the neurologist finds it at least as likely as not that the Veteran’s exposure to commercial herbicides caused his Parkinson’s disease. Although brief, the letters, taken together, and read as a whole and in the context of the evidence of record, contain a positive nexus opinion supported by rationale. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). This opinion is therefore probative. The contrary opinions of the VA examiners are not of greater probative weight than the private opinions. For instance, in concluding that the Veteran suffers from Parkinson’s, a March 2017 VA examination on record mistakenly assumes that the Veteran served in Vietnam and was presumptively exposed to Agent Orange. As this opinion was based n an inaccurate factual premise, it is not entitled to any probative weight. Monzingo, 26 Vet. App. at 107 (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)). A February 2018 VA medical examination found that the Veteran’s Parkinson’s is not related to his military service. In reaching this conclusion, the examiner noted, among other reasons, that the Veteran’s symptoms occurred around the time of his stroke and that some medical literature finds that strokes can be a cause of Parkinson’s disease. However, the examiner also noted that exposure to general environmental pesticides has been proposed to cause Parkinson’s Disease. Thus, while probative, this opinion also reflects some ambiguity in the conclusion and the examiner’s statement that the current medical literature does not definitively associate general environmental pesticides with Parkinson’s disease reflects that he may have required more evidence than the “at least as likely as not” standard required by the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s Parkinson’s disease is related to his military service to include exposure to commercial herbicides therein. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for the currently diagnosed Parkinson’s disease is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lopez, Law Clerk