Citation Nr: 21002246 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-22 386 DATE: January 13, 2021 ORDER Entitlement to service connection for Parkinson's disease is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity (LLE) is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity (RLE) is denied. FINDINGS OF FACT 1. The competent, credible evidence of record is against a finding that the Veteran was exposed to herbicides or herbicide agents during service, to include service in Thailand. 2. The Veteran’s Parkinson’s disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include alleged exposure to herbicides or herbicide agents. 3. The Veteran’s LLE peripheral neuropathy was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include alleged exposure to herbicides or herbicide agents. 4. The Veteran’s RLE peripheral neuropathy was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include alleged exposure to herbicides or herbicide agents. CONCLUSIONS OF LAW 1. The criteria for service connection for Parkinson’s disease are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for LLE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for RLE peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1963 to January 1969. This appeal comes before the Board of Veterans’ Appeals (Board) from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b). 1. Entitlement to service connection for Parkinson’s disease. 2. Entitlement to service connection for LLE peripheral neuropathy. 3. Entitlement to service connection for RLE peripheral neuropathy. Issues 1-3. The Veteran, and his representative, contends that his disabilities stem from service in Thailand. Specifically, the Veteran maintains that his duties at Ubon Royal Thai Air Force Base, Thailand, exposed him to herbicides or herbicide agents. In this regard, the Veteran argues that during service in Thailand, his job duties, such as retrieving security police vehicles at the perimeter, had him near or on the perimeter of the base. The Board concludes that the preponderance of the evidence is against finding that his disabilities were shown as chronic in service; manifested to a compensable degree within the applicable presumptive period; continuity of symptomatology being established; or that the claimed disabilities are otherwise etiologically related to an in-service injury or disease, to include alleged exposure to herbicides or herbicide agents. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. Additionally, VA’s Compensation Service has issued information concerning the use of herbicides in Thailand during the Vietnam era. In a May 2010 bulletin, Compensation Service indicated that it has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes. A primary source for that information was the declassified Department of Defense (DoD) Report titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Although DoD indicated that the herbicide use was commercial in nature, rather than tactical (such as Agent Orange), Compensation Service has determined that there was some evidence that herbicides of a tactical nature, or that of a “greater strength” commercial variant, were used. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhil, Korat, and Don Muang. If a veteran served on one of these bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by his military occupational specialty (MOS), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era, from February 28, 1961, to May 7, 1975. The record establishes the first element of service connection. In this instance, VA examination reports, dated in March 2016, show that the Veteran was diagnosed with Parkinson’s disease and peripheral neuropathy of the bilateral lower extremities. The Board must now determine whether the record demonstrates the presence of an in-service injury. Service treatment records (STRs) are negative for complaints or treatment related to the Veteran’s nervous system. Health questionnaires, dated in March 1966, July 1966, and January 1968, reveal that the Veteran reported no complaint, symptom, treatment, or diagnosis related to Parkinson’s disease or peripheral neuropathy of the bilateral lower extremities. Separation examination report, dated in December 1968, reflects normal clinical evaluation of the neurologic system. Indeed, the summary of defects and diagnoses of the report is negative for Parkinson’s disease or peripheral neuropathy of either lower extremity. A corresponding report of medical history, additionally, is negative for treatment or diagnosis related to Parkinson’s disease or peripheral neuropathy of the bilateral lower extremities. In this regard, aside from the non-related health conditions reported by the Veteran, the physician’s summary section of the report states that the Veteran denied “all other pertinent medical or surgical history.” Thus, the service records do not indicate the incurrence of an injury or disease during active duty. The Veteran, nevertheless, maintains that he was exposed to herbicides or herbicide agents through his active duty service in Thailand. At the November 2020 Board hearing, the Veteran testified to performing duties on or near the base perimeter. Additionally, he testified to working on areas near the flight line that were potentially sprayed with herbicides. As noted above, VA has adopted specific procedures to determine whether a veteran was exposed to herbicides in Thailand during the Vietnam era. In this regard, special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them on or near the perimeters of certain military bases in Thailand. After review of the record, the Board finds that the Veteran was not exposed to herbicides or herbicide agents during active duty service. Personnel records verify that he was stationed at Ubon Airfield in Thailand from August 1965 to December 1965. His MOS during that period was senior vehicle operator, whose duties included operating, cleaning, servicing, and maintaining motor vehicles. A military performance report, for the period from August 1965 to December 1965, and signed by the Veteran’s reporting official, reflects the following facts and specific achievements: During this period [the Veteran] was assigned to the night shift as a taxi driver. He performed these duties in a very satisfactory manner. He is a conscientious driver and is very polite and helpful to his passengers. He maintained a good safety record while operating under extremely adversed conditions. STRENGTHS: [The Veteran] is a very good team worker. He does not hesitate to help his co-workers. He accomplishes all assignments with little instruction and requires a minimum of supervision. SUGGESTED ASSIGNMENTS: Due to his experience [the Veteran] should be retained in the Transportation career field. Next, a memorandum on herbicide use in Thailand during the Vietnam Era, dated in June 2017, specifically states that tactical herbicides, such as Agent Orange, were never used in Thailand. It additionally goes to state that while commercial herbicides were sporadically used for vegetation control in Thailand, the memorandum notes that units that regularly had contact with the base perimeter such as “security personnel and guard dog handlers who walked or performed guard duty along a security perimeter” would have a greater likelihood of exposure to herbicides. The memorandum, moreover, noted that work reported by the Veteran, such as delivering fuel and towing vehicles to security personnel is not “regular duty on a base security perimeter.” Additionally, a September 2017 response from the United States Joint Services Records Research Center (JSRRC) clearly notes that there is no documentation or evidence that tactical herbicides, such as Agent Orange, were ever used in Thailand. Therefore, with regard to presumptive service connection, taking into consideration the above, the evidence does not reflect that the Veteran served on or near the air base perimeter. In this instance, the Veteran’s MOS, while at Ubon Airfield in Thailand, is shown to be that of a night shift taxi driver. Considering his MOS, performance evaluation, and the Veteran’s reports of frequency of going to and from the base perimeter, as described, the Board finds that it does not equate with the duties of the particular military specialties identified by VA, which all involve being posted at, or walking along, the base perimeter. As such, the Board concludes that the weight of the probative evidence is against a finding that the Veteran’s duties routinely placed him on or in close proximity to the air base perimeter such that herbicide exposure may be conceded. Moreover, the preponderance of the evidence is against a finding that the Veteran was otherwise directly exposed to herbicides or herbicide agents while serving at Ubon Airfield in Thailand. Next, regarding the theory of direct service connection, the Veteran has not alleged that his disabilities had their onset during service, manifested within one year of service, or are otherwise directly related to an in-service injury or disease. Furthermore, the medical evidence of record fails to suggest a connection exists between the Veteran’s disabilities and his service. The Veteran’s STRs, as noted above, show no clinical findings consistent with Parkinson’s disease or peripheral neuropathy of the bilateral lower extremities or symptoms indicative thereof. While medical records associated with the claims file show that the Veteran is currently diagnosed with the disabilities, the examination reports show a date of diagnosis for Parkinson’s disease in 2015, and a date of diagnosis for peripheral neuropathy of the bilateral lower extremities in 2016, decades after his discharge. This passage of time is a factor for consideration when making a finding of direct service connection. See Maxson v. West, 12 Vet. App. 453 (1999). Post-service medical records, additionally, do not include any medical opinion regarding a connection between the current disabilities and service. The Board has also considered the Veteran’s lay statements. In particular, the Veteran’s contention that his disabilities stem from exposure to herbicides or herbicide agents. However, the Board finds that he has not been shown to be competent to identify chemicals, to include herbicide agents, by sight, touch, or any other of his own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). Further, to the extent that he argues that symptoms of his disabilities had their onset during service or the presumptive period, the Board finds he is not competent to opine on the etiology of his symptoms given that the disabilities were not shown in service or within the presumptive period and that he lacks the requisite medical expertise to formulate a medical opinion on whether any of his disabilities are related to an in-service injury or disease. This is a complex medical determination beyond the ken laypersons that cannot be answered based on observation or analysis of a layperson. Indeed, this is an intricate matter that requires an understanding of various bodily systems. Therefore, the Veteran, as a layperson, does not have the medical or scientific training or expertise to identify herbicides or herbicide agents or render a competent opinion as to whether his active duty service resulted in herbicide agent exposure. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2011); Layno, 6 Vet. App. at 469. The Board, consequently, assigns greater probative value to the objective evidence, to include the June 2017 memorandum, September 2017 JSRRC response, and his military performance report, for the period from August 1965 to December 1965, which, collectively, show that the Veteran’s duties did not routinely place him on or in close proximity to the air base perimeter such that herbicide exposure may be conceded, presumptively or on a direct basis. The Board additionally assigns greater probative value to the Veteran’s in-service and post-service medical records, which contain no complaints or treatment for his disabilities until decades after service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Lastly, the Board assigns greater probative value to the decades intervening active service and the first documented findings or complaints for Parkinson’s disease and peripheral neuropathy of the bilateral lower extremities. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). Accordingly, the evidence of record does not establish that presumptive or direct service connection for Parkinson’s disease or peripheral neuropathy of either lower extremity as due to herbicide or herbicide agent exposure is warranted. On balance, the weight of the evidence is against the claims. (Continued on the next page)   Accordingly, the claims are denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffey, Associate 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.