Citation Nr: 20061851 Decision Date: 09/21/20 Archive Date: 09/21/20 DOCKET NO. 17-12 338 DATE: September 21, 2020 ORDER Entitlement to service connection for Parkinson's disease to include as due to exposure to herbicide agents is denied. FINDING OF FACT The Veteran’s Parkinson’s disease was not caused by exposure to chemicals, including herbicide agents and trichloroethylene (TCE), during her service at Fort McClellan. CONCLUSION OF LAW The criteria for service connection for Parkinson’s disease are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from June 24, 1974, to July 3, 1974. She testified at a Board hearing before the undersigned Veterans Law Judge in April 2017. The transcript is of record. The Board of Veterans’ Appeals (Board) most recently remanded this case in November 2019 for further development. It is now ready for adjudication. 1. Entitlement to service connection for Parkinson's disease to include as due to exposure to herbicide agents Presumptive Service Connection Under 38 C.F.R. § 3.309(e), if a Veteran was “exposed to an herbicide agent” during service then certain diseases, including Parkinson’s disease, will be service connected if the requirements of § 3.307(a)(6) are met subject to the rebuttable presumption provisions of § 3.307(d). The provisions of § 3.307(a)(6) require that the disease manifest to a degree of 10 percent or more at any time after service. The provisions of § 3.307(d) provide that the presumption may be rebutted by affirmative evidence to the contrary, which in turn requires such a showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. The questions for the Board are was the Veteran “exposed to an herbicide agent” as required to trigger the presumption of service connection, and if so, is there enough affirmative evidence to the contrary to rebut the presumption of service connection. An “herbicide agent” is defined in 38 C.F.R. § 3.307(a)(6) to mean a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 2962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. The Veteran’s representative argues that even if a particular herbicide product was not used in the Republic of Vietnam that herbicide may still contain an herbicide agent if it contains one of the chemicals enumerated by 38 C.F.R. § 3.307(a)(6)(i). 38 C.F.R. § 3.307 was authorized by 38 U.S.C. § 1116(a)(3) and mostly follows the Code verbatim; however, the regulation added the language starting with “specifically”. VA’s addition of these chemicals represents a finding by VA that the enumerated chemicals were the chemicals the Code describes as in an herbicide used in the Republic of Vietnam. There are no modifiers on these chemicals, such as the need to use them in a particular product or in specific proportions with other chemicals. Accordingly, the regulations require VA to accept the enumerated chemicals as “herbicide agents” even if not mixed with the other ingredients that made up an agent used in Vietnam, such as Agent Orange. The Veteran provided an expert opinion by Dr. H.M. that “it is more likely than not; in fact, it is to a reasonable degree of certainty that those serving and/or living at FMTC between 1974-1976 were exposed to the herbicide agents discussed herein.” In particular, Dr. H.M. opined that the Directorate of Engineering and Housing at Fort McClennan had used picloram; 2,4,5-T contaminated with TCDD; Tordon; Silvex; 2,4-D; and DMA. In a chart in her report, she identified 8,000 gallons of Silvex; 1,800 gallons of 2,4,5-T; 0 gallons of Picloram; 7,200 gallons of 2,4-D; and 12,000 gallons of DMA as used at the base in 1974. According to the doctor, it would take 11,375 gallons of Silvex, 2,4-D, or DMA to cover the base once and 22,750 gallons of 2,4,5-T to cover the base once. The weakness in Dr. H.M.’s report is that it did not consider the Veteran’s individual circumstances. By a significant amount, most of the pesticide use described by Dr. H.M. occurred after the Veteran’s two week service at the base in mid-1974. This weakens the persuasive force of her analysis. The opinion also did not try to correlate areas sprayed with the areas in which the Veteran was physically present. Although the doctor mentioned the quantities needed to spray the entire base, those quantities were more (sometimes significantly more) than the amounts actually sprayed in 1974. Even for the later periods, the Doctor did not attempt to explain why a base-wide spray pattern should be assumed. The Veteran’s representative prepared a summary entitled “Combined Environmental Exposure Report.” The report is not itself evidence, but a prepared summary of evidence. It too is not tailored to the Veteran’s circumstances as it mentions things such as citations from the 1980s and 1990s by the Alabama Department of Environmental Management. These citations happened one to two decades after the Veteran’s service period. The report also mentions a Fort McClellan forester’s recollection of Tordon being applied all over the base. The Forester was employed from 1960 to 1987 and the report did not indicate when Tordon was applied. Dr. H.M.’s report and the attorney summary describe Tordon as not being used until 1975, however, the year after the Veteran’s time at the Fort. Although the evidence indicates that herbicide agents were used at the Fort, it also indicates that the large majority of the use, including the use remembered by the Forester, was after the Veteran’s time. The mere storage or use of herbicide agents somewhere on the base at some point in the base’s history does not make it at least as likely as not that the Veteran was exposed to those herbicide agents during her two weeks stationed there in 1974. The Veteran, through her representative, has provided significant evidence regarding herbicide agents at Fort McClellan, but that evidence indicates their use primarily after her time. Nevertheless, the Veteran has shown some evidence that thousands of gallons of herbicide agent were used at Fort McClellan around the time of her service and the Forester’s report indicates that the use of herbicide was generally done in a wide-spread manner. Although the Veteran’s time at Fort McClellan was limited, the record indicates that she spent time outdoors and in direct contact with the environment. An individual training record indicated that the Veteran’s time included 8 hours of physical readiness training, 10 hours of drill and ceremonies, 4 hours of CBR, 10 hours of field training, 7 hours of land navigation, and 1 hour of survival, evasion, and escape training. The Veteran testified to riding in the grass and soil at Fort McClellan during her hearing Board testimony in April 2017. The Board finds that the Veteran’s activities at the Fort combined with the thousands of gallons of pesticide used makes it at least as likely as not that she was exposed to an herbicide agent. The Regulations do not qualify the amount of exposure that is required. Nor do they indicate a length of service time or something other to indicate that more than slight exposure is required. Accordingly, the presumption of service connection for herbicide agent exposure is applicable. Having found the presumption applicable, the Board must next consider whether the presumption is rebutted. Under 38 C.F.R. § 3.307(d), the presumption may be rebutted with evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. A conclusive showing is not necessary, but rather a showing that would in sound medical reasoning and in the consideration of all the evidence of record, support a conclusion that the disease was not incurred in service. The regulations do not include examples of affirmative evidence to the contrary for herbicide agent exposure but do so for tropical diseases. There, the regulations state that a showing that the veteran had no service in a locality having a high incidence of the disease may be considered. 38 C.F.R. § 3.309(d)(1). The language “high incidence” indicates that the regulations do not require that the veteran served only in areas with no exposure to the disease, just that he or she did not serve in areas with high exposure. A parallel can be drawn to the current case because, although the Veteran was exposed, she did not have the higher exposure levels that the cited scientific literature used to draw a correlation between exposure and Parkinson’s disease. VA obtained exams and opinion letters stating that the Veteran’s time in service was less likely than not the cause of her Parkinson’s disease. In particular, the September 2017 opinion explained that the risk of Parkinson’s disease comes from exposure to high levels of chemicals rather than exposure to any level of chemicals. The opinion explained that the papers finding a link with Parkinson’s were focused on pesticide applications to crops within 100 or 500 meters of the person’s home. The Veteran did not report being close to spraying and did not reside for extended periods near such an area. Her training records reported her potential outdoor exposure time in mere hours. VA obtained confirmatory opinions in December 2017 and in February 2020. The December 2017 opinion emphasized the need for high levels of exposure to the pesticides, such as individuals applying pesticide or living for extended periods close to an application site. It referenced relevant medical literature and literature cited by the Veteran and the doctor explained the high-level exposures experienced in each. The February 2020 examiner opined that VA’s published information was based on review of the scientific information and consensus by experts in toxicology and that that information reported no adverse health effects of service at Fort McClellan.   The VA opinions are based on scientific research and medical experience and are entitled to weight. The Veteran submitted a December 2017 self-titled nexus opinion from Dr. C.N.B. Dr. C.N.B. claimed that the September 2017 opinion had logical disconnects because the September doctor stated that he did not know the Veterans dose but still opined that her Parkinson’s was not caused by exposure in service. These statements are not illogical. The September 2017 opinion stated that high doses of chemicals could cause Parkinson’s. The meaning of a high dose was determined by reference to the scientific studies and the examiner (correctly) determined that the Veteran did not have a comparable high dose. Although the doctor could not determine an exact amount of exposure, an exact amount is not needed because he could conclude the dose was not akin to the doses required by the studies. Dr. C.N.B. also made incorrect statements of the law in his opinion. He stated that “in a situation where it is impossible to know (the doses she was exposed to) that the benefit of the doubt goes to the patient.” The benefit of the doubt standard is one where there is equal evidence for and against. It is still the Veteran’s responsibility to present and support their claim for benefits, and something being unknown is not the same as something being at least as likely as not. 38 U.S.C. § 5107; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009). Dr. C.N.B.’s opinion appears based on both a mistaken view of the law and the facts in this case as the Board finds that--based upon the Veteran’s descriptions, service records, two week service period, and the expert reports of the time and nature of herbicide applications--the Veteran’s exposure is knowable in that it was significantly lower than the amounts required by the studies to find a correlation with Parkinson’s disease. As “an opinion based on an inaccurate factual premise has no probative value,” Reonal v. Brown, 5 Vet. App. 458, 461 (1993), the opinion of Dr. C.N.B. regarding herbicides does not weigh against the September 2017 VA opinion.   The Veteran provided other positive nexus opinions. Dr. C.D. opined that her Parkinson’s was more likely due to in-service exposure “per neurology opinion.” This was not a separate opinion, but merely a repeating of the neurology opinion. The neurology opinion was by Dr. A.C.B. and stated that it was more likely than not that the Veteran’s Parkinson’s disease was due to her “toxic exposures of PCB’s/herbicides/pesticides and other toxic substances.” No further rationale was given. The Board finds that the lack of a rationale limits the probative value of this opinion because “most of the probative value of a medical opinion comes from its reasoning . . . [an opinion is not] entitled to any weight in a service-connection . . . context if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The minimalist nexus opinion does not provide a rationale as to why the Veteran’s specific facts support service connection, whereas the three VA opinions provide detailed rationale based on scientific literature. The VA opinions outweigh the probative value of the private opinions. As there is significant affirmative evidence contrary to a finding that the Veteran’s Parkinson’s disease was caused by exposure to herbicide agents, the presumption of service connection is rebutted. The Board recognizes that its March 2018 decision, which was vacated by the Court, denied the Veteran’s claim based on the finding that exposure to herbicide agents had been established. Such was by no means an implied finding that service connection on a presumptive basis would be warranted if exposure had been established. Rather, in entering its analysis of the Veteran’s claim, the Board stopped after determining that exposure to herbicide agents had been established. No useful purpose would be served the rebut the presumption of service connection from exposure when exposure was not found. Had exposure been shown, an analysis similar to the above would have followed. (CONTINUED NEXT PAGE)   Direct Service Connection In addition to herbicide exposure, the Veteran has claimed that one of the other toxic chemicals she was exposed to could have caused her Parkinson’s disease. Direct service connection is possible for non-presumptive exposure to chemicals or other substances. The Board finds, however, that direct service connection has not been established. The Veteran submitted an opinion from Dr. C.N.B. that describes Fort McClellan as a superfund site with over 100 toxic chemicals found at the site. To be clear, the record now contains a complete copy of the superfund record for Anniston Army Depot in Alabama. The Army Depot is a large land parcel adjacent to, but separate from, Fort McClellan. The Veteran’s testimony and service records do not indicate that the Veteran served or traveled to the Army Depot. Moreover, the superfund report speaks specifically to a small portion of the Army Depot referred to as the Southeast Industrial Area. This area, which is remote from the border with Fort McClellan is the section was the “focus of [the] Record of Decision” for the superfund report. The distance of the site from the area the Veteran was known to be limits the weight of the report. In addition, the superfund report was compiled in 1991. The Veteran served in 1974. The report does not support a finding as to the state of ground water at the remote Fort McClellan several decades earlier. Although Dr. C.N.B. based his opinion that the Veteran was exposed to TCE solely on the superfund report (“She was exposed to TCE as per the superfund report”), he does not explain how the superfund report supports this conclusion for the Veteran specifically in 1974 at Fort McClellan, and the report on its face does not contain any findings about the water at Fort McClellan in 1974. Dr. C.N.B. ultimately opined that the Veteran’s Parkinson’s disease was caused by her exposure to TCE in service. As his report is based upon an incorrect factual premise regarding the contents of the superfund report, it cannot be given significant weight. In addition, Dr. C.N.B.’s conclusion that TCE causes Parkinson’s is also undermined by the February 2020 examiner’s report. The February 2020 examiner reviewed Dr. C.N.B.’s sources and found that a link between Parkinson’s and TCE (trichloroethylene) existed based on 3 of 30 workers that had been exposed to TCE over the course of 8 to 33 years. This is significantly different from the Veteran--who was at Fort McClellan for two weeks and was not working directly with TCE and the February 2020 examiner opined that this difference in dosage was critical in determining the likely cause of the Veteran’s Parkinson’s disease. Although numeric precision may not be available, the Veteran’s dose is knowable based upon her time and routes of potential exposure. In this context, her exposure is considerably smaller than that of the workers that had been exposed for years while working. Dr. C.N.B. erroneously assumed that it was “impossible to know” the exposure dose and his opinion cannot be weighed heavily as he assumed it was a more significant dose based upon “the benefit of the doubt.” As discussed in the previous section, the Veteran provided other positive nexus opinions. Dr. C.D. opined that her Parkinson’s was more likely due to in-service exposure “per neurology opinion.” This was not a separate opinion, but merely a repeating of the neurology opinion. The neurology opinion was by Dr. A.C.B. and stated that it was more likely than not that her Parkinson’s was due to her “toxic exposures of PCB’s/herbicides/pesticides and other toxic substances.” No further rationale was given. The Board finds that the lack of a rationale limits the probative value of this opinion because “most of the probative value of a medical opinion comes from its reasoning . . . [an opinion is not] entitled to any weight in a service-connection . . . context if it contains only data and conclusions.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The minimalist nexus opinion does not provide a clue as to what “toxins” to which it is attributing the Parkinson’s disease or why. The September 2017 VA opinion opined that the personnel at Fort McClellan had not be subject to agents with long term health effects. It cited the Agency for Toxic Substances and Disease Registry assessment of airborne PCBs in Anniston that found that there were no expected harmful health effects to people living outside the perimeter of the former PCB manufacturing facility. The December 2017 addendum opinion added that some members of the Women’s Army Corps (among others) may have been exposed to hazardous materials likely at low levels, but that the levels of potential exposure at Fort McClellan were not of the level to have likely adverse health effects. In particular, the levels of exposure to have a correlation to Parkinson’s disease were high relative to the potential exposure at Fort McClellan. The opinion explained that the level of exposure necessary was for people that had directly worked with the chemicals or who lived within 500 meters of a direct application. The Veteran did not apply the chemicals or toxins herself and was not near the chemicals at the time of their application and accordingly did not have the level of exposure necessary to increase her risk for Parkinson’s disease. The Board notes that the report’s conclusion that the Fort did not subject personnel to agents with long term health effects is not contrary to the Board’s earlier finding that the Veteran had been exposed to toxins and other chemicals. The key difference is that the report focused on long term health consequences, which required consideration of not just the agents, but their doses. For example the report did not suggest that people outside of the PCB manufacturing facility were not exposed to any PCBs, but rather that the concentration and dose of PCB outside of the facility were not high enough to result in long term health effects or concerns. The Board weighs the VA opinions heavily because they provide a detailed rationale including numerous citations to the literature with explanations as to the Veteran’s specific circumstances. The Veteran has also opined that she believed that her Parkinson’s was due to her time at Fort McClellan. The Veteran is not known to have medical experience or training, however, and her opinion cannot be considered a competent medical opinion. The diagnosis of Parkinson’s disease is complex and requires knowledge of multiple body systems and an understanding of an extensive body of scientific literature. As such the VA medical opinions outweigh the Veteran’s personal opinion. Finally, the February 2020 examiner opined that Parkinson’s disease is typically idiopathic, and that the Veteran’s case was also most likely idiopathic. According to the American Heritage Medical Dictionary, idiopathic designates “a disease having no known cause.” In other words, this is not a disease that only occurs after exposure to certain chemicals and it is not a matter of narrowing down which exposure caused it. The examiner found the Veteran’s Parkinson’s disease likely had no connection to chemical exposure and this too weighs against service connection. As the Veteran’s Parkinson’s disease was not at least as likely as not caused by service, service connection must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul Saindon, Special 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.