Citation Nr: 20060244 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 14-19 014 DATE: September 14, 2020 REMANDED Service connection for Parkinson’s disease, to include as due to exposure to asbestos, herbicides (Agent Orange), radiation, and other chemicals, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1968 to December 1969 in the U.S. Navy. Subsequently, the Veteran briefly served in the Navy Reserve from 1981 to 1982. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from May 2011 and May 2012 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In November 2015 and September 2018, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998).   Service connection for Parkinson’s disease, to include as due to exposure to asbestos, herbicides (Agent Orange), radiation, and other chemicals, is REMANDED. First, since the appeal is already being remanded for further development (as explained below), the Board sees the Veteran’s VA treatment records on file from the VA Medical Center (VAMC) in Tuscaloosa, Alabama date to November 2017. Therefore, if the Veteran has had any additional treatment at the VA, these records should be obtained. Second, after completion of the above development, the Veteran should be scheduled for a VA DBQ examination with an appropriate clinician to determine if the Veteran’s current Parkinson’s disease is related to asbestos exposure or other chemical exposure during his Navy service in 1968 and 1969. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). During the course of the appeal, VA has not scheduled the Veteran for a VA examination or VA medical opinion to determine the etiology of his Parkinson’s disease. In order to trigger VA’s duty to assist to provide a VA examination, the types of evidence that “indicate” that a current disability “may be associated” with military service include, but are not limited to: medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits; credible evidence of continuity of symptomatology; relevant medical literature or medical treatise evidence suggesting a potential relationship; or a causal relationship within a lay person’s general realm of knowledge. Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); McLendon, 20 Vet. App. at 83. Previously, there was no probative evidence of record in the claims file suggesting or indicating that the Veteran’s current Parkinson’s disease may be associated with exposure to an in-service chemical or toxin. See 38 C.F.R. § 3.159(c)(4)(i)(C). The Veteran’s conclusory generalized lay assertions were deemed not sufficient enough to trigger VA’s duty to provide the Veteran with a VA examination. Waters, 601 F.3d at 1278. However, in a September 2020 Brief from the American Legion, the Veteran’s representative suggested that the Veteran’s current Parkinson’s disease resulted from exposure to various chemicals or toxins as part of his in-service MOS duties as a pipe fitter and welder aboard the USS Proteus in 1968 and 1969. Specifically, the Veteran’s representative included a link to medical treatise evidence (a John’s Hopkins Medicine clinical article), which provided that the development of Parkinson’s disease may be linked to chemicals and toxins a welder (such as the Veteran) is frequently exposed to – manganese and other medals, solvents such as Trichloroethylene, and organic pollutants such as Polychlorinated biphenyls (PCBs). In fact, PCBs were used in various industrial processes until they were banned in the 1970s. Researchers have found high concentrations of PCBs in the brains of people who had Parkinson’s disease, according to the John’s Hopkins Medicine clinical article cited by the Veteran. Therefore, the AOJ should secure a VA examination and opinion addressing service connection for the Veteran’s Parkinson’s disease. With regard to asbestos exposure, the Board has reviewed a VA table describing the probability of asbestos exposure using a veteran’s Navy MOS. Given the Veteran’s occupational duties as a pipe fitter / welder, it is probable the Veteran had occupational exposure to asbestos both in-service and post-service. Therefore, the VA examiner must also address whether the Veteran’s Parkinson’s disease is associated with his confirmed in-service asbestos exposure in 1968 and 1969. See McGinty v. Brown, 4 Vet. App. 428 (1993). With regard to herbicide exposure, Parkinson’s disease is one of the diseases associated with herbicide exposure for purposes of the presumption of service connection. 38 U.S.C. § 1116(a)(2); 38 C.F.R. 3.309(e). On this issue, in accordance with earlier November 2015 and September 2018 Board remands, the AOJ completed extensive development to determine if the Veteran served in the Republic of Vietnam. A favorable finding on that issue would presume in-service herbicide exposure. The Veteran alleges that sometime in the summer of 1969, he disembarked from the USS Proteus on a tender and stepped foot on the Vietnam landmass. See February 2011 and May 2011 Reports of General Information (VA Forms 21-0820). However, in an earlier June 2010 Application for Pension (VA Form 21-526), the Veteran indicated he did not have service in Vietnam and was not exposed to Agent Orange or other herbicides during active duty. In addition, the previous herbicide-related development ordered by the Board establishes that in 1968 and 1969 the Veteran did not have duty or visitation in the Republic of Vietnam, or on its inland waterways, or nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. See 38 U.S.C. §§ 1116(a) 1116A; 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a); Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc). That is, various evidence of record establishes that the USS Proteus remained near Guam in the summer of 1969 but did not sail at or near Vietnamese waters. See 1969 deck logs for the USS Proteus, a November 2017 Naval History and Heritage Command report, a December 2018 DPRIS response, and other evidence of record. Consequently, absent service in Vietnam or an allegation of other herbicide exposure, a service connection analysis or any further development for herbicide exposure is not warranted. That is, where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible (such as exposure to herbicide agents by way of Vietnam service), a VA examination is not required. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010). Third, with regard to radiation exposure, the Veteran contends that he was exposed to ionizing radiation while performing repairs on nuclear missiles in submarines during service in 1968 and 1969. He believes his Parkinson’s disease developed as a result of that exposure. See February 2011 Report of General Information (VA Form 21-0820). On this issue, a December 1969 Record of Occupational Exposure to Ionizing Radiation (DD Form 1141) confirms ionizing radiation exposure for the Veteran aboard the USS Proteus. (But the dose reading was “0” according to this form under all methods of monitoring). In addition, Parkinson’s disease is not listed as a radiogenic disease potentially entitled to presumptive service connection under 38 C.F.R. § 3.309(d)(2). Nor is Parkinson’s disease listed as a “radiogenic disease” under 38 C.F.R. § 3.311(b)(2). The Board has also considered that 38 C.F.R. § 3.311(b)(4) states that if an ionizing radiation claim is based on a disease not listed as a “radiogenic disease” under 38 C.F.R. § 3.311(b)(2), VA shall nevertheless develop the claim under the provisions of section 3.311 provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. At the present time, the Veteran has submitted no such medical or scientific evidence for Parkinson’s disease. Thus, under 38 C.F.R. § 3.311(a) and (c), neither a dose assessment from the Department of Defense, nor a medical opinion from the Under Secretary for Benefits, nor any further radiation-related development, is warranted. However, the Veteran is free on remand to submit or cite to competent scientific or medical evidence that his Parkinson’s disease is a radiogenic disease. If such evidence is forthcoming, the AOJ should undertake the required development listed under the provisions of 38 C.F.R. § 3.311, including obtaining a VA medical opinion. This matter is REMANDED for the following action: 1. The AOJ should obtain the Veteran’s VA treatment records from the VAMC in Tuscaloosa, Alabama dated from November 2017 to the present and associate them with the claims file. 2. After completion of step 1, the AOJ should schedule the Veteran for a VA DBQ examination by an appropriate clinician to determine the etiology of the Veteran’s current Parkinson’s disease. Access to the claims file must be made available to the VA examiner for review. Any and all studies, tests, and evaluations deemed necessary by the VA examiner should be performed. The Veteran must be interviewed. The VA examiner must address the Veteran’s relevant lay assertions, and if necessary, address whether the Veteran’s lay assertions are consistent or inconsistent with his medical history and clinical data. Finally, the VA examiner must provide a clear explanation for the medical opinion. Alternatively, in light of the Covid-19 pandemic and / or the Veteran’s deteriorating medical condition due to his Parkinson’s disease, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for this Veteran. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (a.) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran’s current Parkinson’s disease developed as the result of his confirmed in-service asbestos exposure from 1968 to 1969? • In answering this particular question, pre-service, in-service, and any post-service exposure to asbestos should all be discussed. The VA examiner is advised that VA is conceding the Veteran’s in-service asbestos exposure as “highly probable” on account of his MOS as a pipe fitter / welder in 1968 and 1969. During service, the Veteran worked on the hulls of submarines and ships. In short, for purpose of rendering the above medical opinion, in-service exposure to asbestos is assumed for this Veteran. However, post-service, the Veteran continued to work as a welder and millwright for 30 years from 1970 to 2000. This included welding work as a civilian on Navy ships, millwright machines, tanks, submarine hulls, and railroad cars. See October 2002 Social Security Administration (SSA) decision and associated records. Therefore, the impact of the Veteran’s post-service asbestos exposure should be considered as well. (b.) Is it at least as likely as not (i.e., 50 percent or more probable) that the Veteran’s current Parkinson’s disease developed as the result of other in-service chemical exposure from 1968 to 1969? • In answering this particular question, the VA examiner is advised that the Veteran worked as a pipe fitter, welder, and millwright both during service from 1968 to 1969 and post-service for 30 years from 1970 to 2000. The VA examiner’s attention is directed to a September 2020 Brief from the American Legion. In this Brief, a website link was included to medical treatise evidence (a John’s Hopkins Medicine clinical article). This clinical article provided that the development of Parkinson’s disease may be linked to chemicals or toxins or contaminants a welder (such as the Veteran) is frequently exposed to – manganese and other medals, solvents such as Trichloroethylene, and organic pollutants such as Polychlorinated biphenyls (PCBs). In fact, PCBs were used in various industrial processes until they were banned in the 1970s. Researchers have found high concentrations of PCBs in the brains of people who had Parkinson’s disease, according to this John’s Hopkins Medicine clinical article. In answering the questions above, the VA examiner is also advised of the following evidence: • Service treatment records (STRs) dated from 1968 to 1969 are negative for any complaints, treatment, or diagnosis of a Parkinson’s disease. • Post-service, an August 1981 Navy Reserve enlistment examination revealed a normal clinical evaluation. At an August 1981 Navy Reserve report of medical history at enlistment, the Veteran denied any history of signs or symptoms that could be associated with Parkinson’s disease. • Post-service, according to a March 2010 Brewton Medical Center progress note, the Veteran reported the first onset of symptoms for Parkinson’s disease 10 years before (around the year 2000), with slowing of motor movements and tremors. After the year 2000, the Veteran experienced a 10-year history of progressive bradykinesia, tremors, stiffness / rigidity, weakness, and other signs and symptoms of Parkinson’s disease. It was noted that one daughter of the Veteran has medication side effects with Parkinsonism symptoms in association with treatment of schizophrenia. But otherwise there is no family history for the disorder. 3. If and only if the Veteran cites or submits competent scientific or medical evidence that his Parkinson’s disease is a radiogenic disease, then and only then should the AOJ should undertake further development such as a dose assessment from the Department of   Defense, or a medical opinion from the Under Secretary for Benefits, regarding the ionizing radiation claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, Counsel 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.