Citation Nr: 18155126 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 15-23 533 DATE: December 3, 2018 ORDER Entitlement to service connection for Parkinson's Disease, to include as due to exposure to herbicide is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Veteran was exposed to herbicides during his active military service while stationed at Fort Drum. 2. Resolving reasonable doubt in favor of the Veteran, the Veteran’s Parkinson’s Disease results from his exposure to herbicides during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for Parkinson’s Disease, to include as due to exposure to herbicide have been met. 38 U.S.C. §§ 101 (24), 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.307 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1957 to January 1959, and from October 1961 to August 1962. The Veteran also served in the Army Reserves from January 1959 to October 1961. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). He testified before the undersigned Veterans Law Judge during a November 27, 2018 video conference hearing. The transcript from the hearing has not yet been associated with the file, as the case is being granted under the Board’s “One Touch” program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. 1. Entitlement to service connection for Parkinson's Disease, to include as due to exposure to herbicide The Veteran asserts that he is entitled to service connection for Parkinson’s Disease due to exposure to herbicides while conducting annual training at Fort Drum, New York, in 1959. The Veteran was diagnosed with the disease in 2002. Under applicable VA law, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, the following must be shown: (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). Active military service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). In general, the relevant law provides that a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The specific statute pertaining to claimed exposure to Agent Orange is 38 U.S.C. § 1116 (2002). Regulations issued pursuant thereto previously provided that, if a veteran who served on active duty in Vietnam during the Vietnam era developed one of the diseases which is presumed to have resulted from exposure to herbicides, the veteran would then be presumed to have been exposed to Agent Orange or similar herbicide. See McCartt v. West, 12 Vet. App. 164 (1999). These regulations have also stipulated the diseases for which service connection could be presumed due to an association with exposure to herbicide agents. 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). In December 2001, the President signed into law the Veterans Education and Benefits Expansion Act of 2001 (VEBEA), Public Law No. 107-103, 115 Stat. 976 (2001). Among other things, the VEBEA removed the 30-year limitation on presumptive service connection for respiratory cancers due to herbicide exposure; added Type 2 diabetes mellitus to the list of presumptive diseases based upon herbicide exposure (codifying a VA regulation which had been in effect since July 2001, see 66 Fed. Reg. 23,166-169 (May 2, 2001)); and provided a presumption of exposure to herbicides for all veterans who served in Vietnam during the Vietnam Era, not just those who have a disease on the presumptive list provided in 38 U.S.C. § 1116(a)(2) and 38 C.F.R. § 3.309(e) (reversing the Court's holding in McCartt, supra). These statutory provisions became effective on the date of enactment, December 27, 2001. 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 U.S.C. § 1116 (West 2002); Veterans Education and Benefits Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (Dec. 27, 2001); 38 C.F.R. § 3.307(a)(6)(ii) (as amended by 67 Fed. Reg. 67792 (Nov. 7, 2002)). Notwithstanding the foregoing presumptive provisions, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that 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); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). In the present case, the competent evidence of record indicates that the Veteran served from January 1957 to January 1959, and from October 1961 to August 1962, The Veteran also served in the National Guard from January 1959 to October 1961. It is undisputed that the Veteran did not serve in the Republic of Vietnam during the Vietnam era. Furthermore, the Veteran’s Parkinson’s Disease was not shown to a compensable degree within a year after discharge from service. In light of the foregoing, entitlement to service connection for Parkinson’s Disease on a presumptive basis can only be granted if the Veteran can show that he was exposed to herbicides at Camp Drum in 1959. In other words, as the Veteran did not serve in the Republic of Vietnam during the Vietnam era, he is not entitled to the presumption of exposure to Agent Orange, and therefore not entitled to service connection for diabetes mellitus due to exposure to Agent Orange unless he can prove that he was exposed to herbicides elsewhere during service. 38 C.F.R. § 3.307(a). As noted above, the evidence supports that the Veteran served at Fort Drum in July 1959. In this regard, a review of the record shows that he was ordered to attend annual field training with his Reserve unit at Fort Drum, New York beginning June 17, 1959. The Board notes that Reserve annual training averages two weeks in length with travel time to and from the training location. The Board also notes that annual training for a military police company would consist of weapons range training, convoy operations, and field exercises, which likely put the Veteran in close proximity to the herbicide usage site. The Veteran’s orders are of record in the claims file. With regard to his potential exposure to herbicides while serving at Fort Drum, according to information provided by the Department of Defense, 13 drums of Agent Orange were sprayed over 4 square miles of Fort Drum in 1959 from a helicopter spray device. In assisting the Veteran regarding his claim, VA obtained records of herbicide agent use at Fort Drum from the Department of Defense (DoD). Under the heading of New York State, the following information was provided: “Location of tactical Herbicide Use, Storage and or testing in New York: Regarding the use or testing of tactical herbicides at Fort (Camp) Drum, New York, the DoD documentation shows that Agent Orange was tested there from May 1 through October 1959. Its application was tested with helicopter spraying of 13 drums over a 4-square mile artillery range. Fort Drum itself includes over 138 square miles. There is no record of testing during any other year or in any location other than the artillery range.” The Board has had the opportunity to conduct legal research on cases involving alleged herbicide exposure at Fort Drum. The Board has found particularly pertinent information in the case of Malinowski v. Gibson, No. 13-0016, WL 2768851 (June 19, 2014), which involved the case of another Veteran who was stationed at Fort Drum in 1974. In pertinent part, this non-precedential Memorandum Decision cited the following evidence which had been presented in support of the claim: According to a July 1981 report prepared by the Chemical Systems Laboratory at the Aberdeen Proving Ground, chemicals found in Agent Orange were discovered at Fort Drum in five-gallon metal cans stored in an “unheated wooden frame building with a wooden floor.” That rustic facility did “not meet present day requirements for storage of pesticides.” Another building was undergoing renovations so that it could be used to "properly store" herbicides and other pesticides. The report also revealed that at Fort Drum in 1961 Dow Chemical Company “tested an experimental defoliant” and that from the 1950s through the early 1970s, herbicides were used “on range impact areas... to improve the line of vision from observation points to target impact areas.” In February 1984, an official at the U.S. Army Toxic and Hazardous Materials Agency wrote that an “exploratory survey at [Fort Drum] has been designed to determine whether or not site specific contaminants are migrating or have the potential to migrate beyond the installation’s boundaries.” The official stated that samples collected for the survey would be tested for the presence of chemicals associated with Agent Orange because “this particular herbicide was used on the range impact areas to improve the line of vision from observation points to target impact areas... during the 1960s through the early 1970s.” The Board notes that it may take judicial notice of evidence not subject to reasonable dispute - particularly if favorable to the Veteran. See Smith (Brady) v. Derwinski, 1 Vet. App. 235, 238 (1991). The evidence cited in the Malinowski case raises significant doubt regarding whether herbicides were stored and used at Fort Drum after 1959 and whether their impact was short-lived. As noted by the Court in Malinowski, the 1984 report by the U.S. Army Toxic and Hazardous Materials Agency, investigating whether Agent Orange sprayed onto vegetation at Fort Drum in the 1960s and 1970s still may have been present in the surrounding environment “strongly suggest[ed] that experts, at least in 1984, believed that Agent Orange may remain extant and hazardous a decade or more after it was applied.” Notably, the Malinowski Court also noted that a June 2004 Board decision had conceded that a Veteran was exposed to herbicides at Fort Drum in 1962 by relying on the 1984 report by the U.S. Army Toxic and Hazardous Materials Agency. That Board decision, further elaborated that the February 1984 letter from the Department of the Army, U.S. Army Toxic and Hazardous Materials Agency stated that herbicide 2, 4, 5-T was utilized during the 1960s through the early 1970s at Fort Drum to improve the line of vision from observation points to target impact areas as well as to control brush along roads in the main impact area. Notably, 2, 4, 5-T and its contaminant TCDD is listed as a qualifying herbicide under 38 U.S.C. § 1116(a)(4) and 38 C.F.R. § 3.307(a)(6)(i). Here, there is direct evidence that Agent Orange was tested at Fort Drum from May 1 through October 1959 with helicopter spraying of 13 drums over a 4-square mile artillery range. The Veteran was present at this time, and any exposure during ACDUTRA would be considered an “injury” for service connection purposes. See, e.g., VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 08-2001 (February 26, 2001); VAOPGCPREC 86-90 (July 18, 1990). In light of this as well as the information cited above concerning migration and residual contamination, the Board resolved reasonable doubt in favor of the Veteran and finds that the Veteran was exposed to herbicides during service, while stationed at Fort Drum. Parkinson’s Disease is one of the disabilities that are presumed to be related to exposure to herbicides. 38 C.F.R. § 3.309(e). The present decision is based on the record and the research conducted in this appeal, and carries no precedential weight as to any other pending cases. 38 C.F.R. § 20.1303 (2017). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael J. O'Connor