Citation Nr: 18149799 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-46 312 DATE: November 13, 2018 ORDER Entitlement to service connection for Parkinson’s disease, to include as secondary to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran served in Thailand, but the evidence does not demonstrate that his duties were performed at the perimeters of the base; therefore, exposure to herbicide agents cannot be presumed. 2. The evidence does not show that the Veteran’s Parkinson’s disease was incurred in or resulted from active duty service, to include as secondary to claimed in-service herbicide agent exposure; nor did it manifest within one year from separation of service. CONCLUSION OF LAW The criteria to establish service connection for Parkinson’s disease are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1967 to January 1971, and again from August 1972 to April 1974. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection requires: (1) the existence of a present disability; (2) 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Pertinent here, paralysis agitans (such as Parkinson’s disease) are considered a “chronic disease” under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic disease” in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as paralysis agitans (Parkinson’s disease), becomes manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Additionally, VA has established a presumption of herbicide agent exposure applicable to Veterans who served in Republic of Vietnam during the Vietnam War. Specifically, 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. “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), 3.309(e). In Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), the Federal Circuit upheld the VA’s interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring proof of some duty or visitation onshore in Vietnam. VA has determined that there was significant use of herbicide agents on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Therefore, VA has established specific procedures for verifying exposure to herbicide agents for veterans who served in Thailand during the Vietnam Era. Special consideration of herbicide agent exposure on a facts-found or direct basis are extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases, which allows for presumptive service connection of the diseases associated with herbicide agent exposure. The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases (RTAFBs) of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by his military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide agent exposure should be acknowledged on a facts-found or direct basis. This allows for presumptive service connection of the diseases associated with herbicide agent exposure and applies only during the Vietnam Era, from February 28, 1961, to May 7, 1975. Certain diseases, such as Parkinson’s disease, are deemed associated with herbicide agent exposure under VA law and shall be service-connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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. 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. 1. Entitlement to service connection for Parkinson’s disease, to include as secondary to exposure to herbicide agents In his December 2012 claims application, the Veteran reported that his Parkinson’s disease began in December 2010. He stated that he served at U-Tapao, Thailand, from December 1968 to December 1969, at which time he contended that he was exposed to herbicide agents. In December 2013, he reported that he was stationed in Thailand, 50 miles from the border of Vietnam; he believed monsoon winds “must have carried the Agent Orange from Vietnam onto his camp.” In his January 2014 notice of disagreement, the Veteran stated that he mainly worked on planes and maintained oxygen masks, survival kits, and parachutes. The B-52s were exposed to and contaminated with herbicide agent particulates. As a result, he contended that he was exposed to herbicide agents. In his September 2016 VA Form 9, the Veteran stated that he had “no other reasonable cause for the onset” of his Parkinson’s disease. He saw dust from herbicide agents on the C130s stored at the base he was stationed in Thailand. He was also responsible for maintaining air crew survivor protective equipment, which was covered in film from the residue of herbicide agents. Based on a review of the evidence of record, the Board finds that the evidence weighs against finding in favor of the Veteran’s service connection claim for Parkinson’s disease. The Veteran’s DD Forms 214 reflect an MOS of parachute equipment specialist from January 1967 to January 1971, and aircrew life support specialist from August 1972 to April 1974. Personnel records reflect service in Thailand from January 8, 1969, to January 8, 1970. Performance evaluations for the periods of October 2, 1968, through April 1, 1969; and April 2, 1969, through October 1, 1969, reflect that the Veteran was a life support/protective equipment specialist at the U-Tapao Airfield, Thailand. As a protective equipment specialist, he was responsible for inspecting, maintaining, and caring for parachutes, survival vests, oxygen masks, and flying helmets. Service treatment records include October 1970 and April 1974 separation examination reporting normal neurologic evaluations, and the Veteran’s denials of neuritis and paralysis. There is no evidence of any complaint, diagnosis, or treatment of Parkinson’s disease during service. Private treatment records reflect that the Veteran has been treated for Parkinson’s disease since December 2010. A December 2013 VA memorandum documented the Regional Office’s finding that there was no documented proof of exposure to herbicide agents, based on its efforts to corroborate exposure to herbicide agents and a thorough review of the claims file. A separate December 2013 memorandum addressed herbicide agent use in Thailand during the Vietnam era. Limited testing of tactical herbicide agents was conducted in Thailand from April 2 through September 8, 1964, specifically the Pranburi Military Reservation associated with the Replacement Training Center of the Royal Thai Army, near Pranburi, Thailand. This spraying was not near any U.S. military installation or the RTAFB. There are no records of tactical herbicide agent storage or use in Thailand other than the 1964 tests on the Pranburi Military Reservation. There are no records of tactical herbicide spraying by Ranch Hand or Army Chemical Corps aircraft in Thailand after 1964, and Ranch Hand aircraft that sprayed herbicide agents in Vietnam were stationed in Vietnam, not in Thailand. Although records indicate that modified Ranch Hand aircraft flew 17 insecticide missions in Thailand from August 30 through September 16, 1963, and from October 14 to 17, 1966, these facts are not sufficient to establish tactical herbicide agent exposure for any veteran based solely on service in Thailand. High altitude jet aircraft stationed in Thailand generally flew far above the low and slow flying UC-123 aircraft that sprayed tactical herbicide agents over Vietnam during Operation Ranch Hand. There is no presumption of “secondary exposure” based on being near or working on aircraft that flew over Vietnam, or handling equipment once used in Vietnam. Additionally, there are no studies showing harmful health effects for any such secondary or remote herbicide agent contact that may have occurred. In December 2015, S.L.E. submitted a lay statement in which he stated that he and the Veteran were responsible for inspecting parachutes, life crafts, life preserves, oxygen masks, survival kits, ejection seats, and other survival equipment on countless aircraft. Some aircraft borrowed equipment from their shop while they went on trips to mainly Vietnam and other trips around the world. As an initial matter, the Board finds that the Veteran has a current diagnosis of Parkinson’s disease, which is listed as a disease presumptively associated with exposure to herbicide agents. The Board considered the Veteran’s contentions that he was exposed to herbicide agents while serving in Thailand. Although the Veteran’s personnel records reflect that the Veteran served in Thailand, specifically at U-Tapao, the Veteran’s MOS did not require that he served on the perimeter of the military base, nor does the Veteran report such. Rather, he contends that he was exposed to herbicide agents either from the equipment he inspected and maintained, or due to monsoon winds that carried herbicide agents into his camp from Vietnam. The December 2013 memorandum clearly finds that there is no presumption of “secondary exposure” based on handling equipment once used in Vietnam or based on working on aircraft that flew over Vietnam. In fact, there are no studies showing harmful health effects for any such secondary or remote herbicide agent contact. Additionally, the Veteran’s contention that herbicide agents were carried into his camp by monsoon winds is pure speculation with no basis based on the evidence. Accordingly, the Board finds that the presumptive provisions of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) do not apply in this case. Furthermore, there is no credible evidence that the Veteran was actually exposed to herbicide agents during service. The Board acknowledges the Veteran’s contention that he was exposed to herbicide agents while working with equipment used on airplanes and due to monsoon winds. However, the Board finds not credible the Veteran’s assertions that he was directly exposed to herbicide agents during service given the speculative nature of his statements. He has offered no probative evidence to support his lay assertion. The Veteran’s statements of such exposure are not sufficient evidence alone to establish that the event actually occurred during service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Veteran’s lay statements must be weighed against other evidence of record, including the lack of documentary evidence of the incident. Therefore, the Board finds that there is no competent evidence of record showing that the Veteran was in fact exposed to herbicide agents. Additionally, STRs do not reflect any complaint, treatment, or diagnosis of Parkinson’s disease during service, and the Veteran does not assert otherwise. Because the Veteran is not presumed to have been exposed to herbicide agents during service and there is no credible evidence of actual exposure to herbicide agents or in-service treatment or diagnosis, the Board finds that the element of an in-service event or injury has not been established. Furthermore, the Veteran reports that he was first diagnosed with Parkinson’s disease in December 2010, when he began treatment, which is approximately 36 years after service. As such, the evidence does not indicate that it manifested within one year from separation of service or resulted in chronic or continuous symptomatology. (Continued on the next page)   The Board does not doubt the sincerity of the Veteran’s contentions. However, based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran’s service connection claim for Parkinson’s disease. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee