Citation Nr: 20003395 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 15-40 830 DATE: January 14, 2020 ORDER Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicide agents, is granted. FINDING OF FACT The Veteran’s Parkinson’s disease is as likely as not related to his presumptive exposure to herbicide agents. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309; Pub. L. 116-23 (to be codified at 38 U.S.C. § 116A(c)). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1963 to April 1967. The Veteran was awarded (among other decorations) the Vietnam Service Medal with three bronze stars and the Republic of Vietnam Campaign Medal with device. A Travel Board of Veterans’ Appeals (Board) hearing was held in February 2019. A transcript of this hearing is contained within the claims file. The Board notes that the Veteran submitted additional evidence to support his claim in November 2019. That evidence has been considered in making the determination set forth below. Entitlement to service connection for Parkinson's disease to include as due to exposure to herbicide agents Generally, service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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 for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In regard to exposure to an herbicide agent, to include Agent Orange, a veteran, who during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during his or her service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The following diseases will be deemed service-connected if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin’s disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin’s lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson’s disease, and ischemic heart disease (to include CAD). 38 C.F.R. § 3.309 (e). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Veteran is seeking entitlement to service connection for Parkinson’s disease. The Veteran concedes that he never set foot in Vietnam, but he contends that he was aboard the USS TOPEKA from 1963 to 1967 and that his ship was in a combat zone in the Gulf of Tonkin and the South China Sea providing gunfire support for the troops ashore and the carrier air operations by conducting search and rescue missions for downed air crews. The Veteran further contends that his ship was close enough to the shore of Vietnam for him to see people walking on the beach. The Veteran asserts that he believes that he was exposed to herbicide agents, specifically Agent Orange, during his military service and/or that he was exposed to toxic fumes from working in the engine room as a part of his military occupational specialty (MOS) and this exposure caused his Parkinson’s disease. The Veteran’s VA medical treatment records show that the onset of the Veteran’s Parkinson’s disease began in 2009 and that he was diagnosed with Parkinson’s disease in June 2010 and has been receiving continued treatment since his June 2010 diagnosis. Thus, a current disability is established. As for the Veteran’s claimed in-service occurrence or his claimed exposure to an herbicide agent while on active duty, the Board notes that the Veteran’s service treatment records (STRs) are silent as to any complaints, symptoms or diagnoses related to Parkinson’s disease. In September 2013, the VA issued a memorandum containing a Formal Finding of a Lack of Information Required to Verify [Agent Orange Exposure] based upon a review of the Veteran’s records. The memorandum noted the efforts that the VA made in order to corroborate the Veteran’s claimed herbicide exposure. The Board, however, finds that the Veteran may be presumed to have been exposed to herbicide agents during his military service and that his Parkinson’s disease is related to his military service under the law and the facts at this time. As noted above, "a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service." U.S.C. § 1116(f); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e). The VA had historically interpreted the statutory phrase "served in the Republic of Vietnam" as incorporating a requirement that the Veteran served on land or inland waterways. See Haas v. Peake, 525 F.3d 1168, 1180-83 (Fed. Cir. 2008). In Procopio v. Wilkie, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that veterans who "served in the 12 nautical mile territorial sea of the 'Republic of Vietnam' are entitled to presumptive service connection under 38 U.S.C. § 1116, so long as they meet the section's other requirements." See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019); see also the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. 116-23 (to be codified at 38 U.S.C. § 1116A(c). The VA's General Counsel has indicated that in some cases affected by the Federal Circuit's decision in Procopio may be capable of immediate decision, if the evidence indicates that the Veteran served onboard a ship that went within the 12 nautical mile territorial sea of Vietnam. See General Counsel Advisory Opinion, VAOPGADVIS 1-19 (Mar. 29, 2019); see also 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"). The Board finds that the evidence of record supports a finding that the Veteran served aboard a ship that was in the 12 nautical mile territorial sea of the Republic of Vietnam during his military service. The Veteran’s military personnel records (MPRs) show that the Veteran served as a Marine Mechanic aboard the USS TOPEKA and out of the 3 years, 11 months and 23 days of the Veteran’s active duty service, he had 3 years, 4 months and 22 days of foreign and/or sea service. The Board notes that it has been determined that the Veteran's ship, the USS TOPEKA, was in official waters of Vietnam during the following timeframes: June 8, 1964 to July 11, 1964, August 8, 1964 to September 7, 1964, December 18, 1965, to January 7, 1966, January 15, 1966 to January 21, 1966, January 30, 1966 to March 1, 1966, and April 9, 1966 to May 8, 1966. In November 2019, the Veteran submitted several pages of deck logs from the time period that he served on the USS TOPEKA and asserted that a review of the deck logs revealed that the USS TOPEKA was anchored within the 12 nautical mile territorial sea of the Republic of Vietnam during the time that the Veteran was onboard the USS TOPEKA. A review of the USS TOPEKA deck logs reveal that the ship was unquestionably within the 12 nautical mile territorial sea of the Republic of Vietnam during the Veteran’s time serving aboard the vessel. Specifically, the deck log from February 20, 1966 reveals that the USS TOPEKA was steaming independently off the Central Quang Tin Province, South Vietnam, maintaining a track about 4,000 yards from the beach awaiting possible missions. Additionally, the deck logs reveal that the USS TOPEKA was on the coast of Vietnam and docked at 600 yards off the port beam on April 16, 1966. The Board finds that there is sufficient evidence to show that the Veteran has a diagnosis of Parkinson’s disease, the Veteran served more than 90 days during a period of wartime, and the Veteran served in the 12 nautical mile territorial sea of the Republic of Vietnam.   Accordingly, resolving all reasonable doubt in the Veteran’s favor, entitlement to service connection for Parkinson’s disease, to include as due to herbicide exposure, is granted. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.