Citation Nr: 1808295	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  16-12 607	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for Parkinson's disease, to include as due to asbestos exposure.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Dworkin, Associate Counsel






INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction over the Veteran's claims currently rests with the RO in Winston-Salem, North Carolina.

This matter was remanded by the Board in September 2017 for additional development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (7).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

Parkinson's disease was not manifested during active service, and the preponderance of medical opinion evidence to address the relationship between any diagnosed Parkinson's disease and service weighs against the claim. There is no competent and persuasive evidence that the Veteran's Parkinson's disease was caused by his exposure to asbestos in service, and there is no competent and persuasive diagnosis of an asbestos-related disability.


CONCLUSION OF LAW

The criteria to establish service connection for Parkinson's disease, to include as due to asbestos exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).





REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159 (2017); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

Notice to a claimant should be provided at the time or immediately after VA receives a complete or substantially complete application for benefits. 38 U.S.C. § 5103 (a) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with 38 U.S.C. § 5103(a)-compliant notice in February 2014. 

The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran was provided a VA examination with respect to the claim decided herein. The examination adequately provides the findings necessary to a resolution to the appeal. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2017).  

Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). 

Where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b) (2017).

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2017). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

With regard to asbestos-related disorders, the VA Adjudication Procedure Manual, M21-1 (M21-1), provides guidance on how to adjudicate claims based on exposure to some environmental hazards, as well as specific guidance in adjudicating asbestos-related claims. M21-1, Part IV.ii.1.I.3 (Nov. 19, 2015). However, there is no VA regulation that allows service connection on a presumptive basis for disorders resulting from exposure to environmental chemicals. 38 C.F.R. §§ 3.307, 3.309 (2017). Rather, service connection based on chemical exposure may be established only if a current disability is shown by the evidence to be related to chemical exposure during service.

The Veteran served in the U.S. Navy from February 1946 to December 1947. The Veteran's duties were noted to be of an aviation machinist. The RO has conceded asbestos exposure in this case. 

An October 2017 VA examination report shows that the examiner opined that it was less likely than not that the Veteran's Parkinson's disease was due to service, to include the reported in-service incident of being struck in the head with a wrench and to his conceded asbestos exposure. Regarding the in-service head injury during service, the examiner reported that Parkinson's-type symptoms and movement disorders arising after brain injury were common but head injuries are not a cause of Parkinson's disease. Regarding the asbestos exposure, the examiner reported that symptoms normally develop when the toxic exposure occurs or soon after, or gradually increase over time when the exposure persists. Symptoms do not develop years later as is sometimes claimed. The examiner noted that there was no evidence in the service treatment records to show a diagnosis of Parkinson's disease. The examiner noted that while the Veteran reported he was diagnosed with Parkinson's disease in 2006, the symptoms in question were found by a neurologist to be due to benign tremor and vitamin B12 deficiency. The examiner noted that the Veteran was diagnosed with Parkinson's disease in 2011, which was 59 years after asbestos exposure.  

With regards to whether the Veteran's Parkinson's disease is related to service, the Board finds that the preponderance of evidence is against the Veteran's claim. Here, the Board notes that there are no reports or treatments for Parkinson's disease in the Veteran's service treatment records. Additionally, the first instance of the Veteran being treated for Parkinson's disease was many years after his separation from service. The passage of time between service separation and medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

Additionally, the Board finds that the October 2017 VA examiner's opinions constitute competent, probative, and persuasive evidence that is based on a thorough review of the Veteran's documented medical history, assertions, and examination that the Veteran's Parkinson's disease was not related to the in-service head injury or exposure to asbestos. The examiner provided a comprehensive rationale based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, the Veteran has not presented or identified any contrary, competent and persuasive medical evidence that supports the claim for service connection. 

While the Veteran is competent to report symptoms of Parkinson's disease such as tremors, he is not competent to relate Parkinson's disease to an in-service head injury or to asbestos exposure during active service, as that requires medical testing and expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an opinion in this case. 

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for Parkinson's disease, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinki, 1 Vet. App. 49 (1990).



ORDER

Entitlement to service connection for Parkinson's disease, to include as due to asbestos exposure, is denied.




____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs