Citation Nr: 21002364 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-29 869 DATE: January 13, 2021 ORDER Entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure is denied. FINDING OF FACT The Veteran’s Parkinson’s disease is etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for Parkinson’s disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Army from April 1971 to April 1974, including service in the Korean DMZ. In May 2019, the Board remanded the issue below on appeal for further development, and the case has since been returned to the Board. The Board finds that the AOJ has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. 1110; 38 C.F.R. 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary. 38 U.S.C. 1116(f). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The list of diseases presumptively associated with herbicide exposure includes Parkinson's disease. 38 C.F.R. § 3.309(e). "Service in the Republic of Vietnam" means actual service in-country in the Republic of Vietnam from January 9, 1962, to May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. 3.307(a)(6)(iii); See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure The Veteran contends that his Parkinson’s disease is due to herbicide exposure during his service in Korea. Specifically, he contends that herbicide agent chemicals may have remained present at dangerous levels for years after application, resulting in his exposure to an herbicide agent during active service. In this case, the Veteran’s service personnel records currently demonstrate in-country service in the Republic of Vietnam; however, this service occurs outside of the period of January 9, 1962, to May 7, 1975; therefore, herbicide exposure cannot be conceded. See, e.g., 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii) and (iv). Even though the Veteran is not entitled to the presumption of exposure to herbicides pursuant to 38 C.F.R. § 3.307(a)(6), he may, nonetheless, establish service connection if he has put forth sufficient evidence to demonstrate by an equipoise standard that he was actually exposed to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To that end, the Veteran, as required by the May 2019 Board remand, was afforded a VA Parkinson’s Disease examination. The examiner diagnosed Parkinson’s disease and opined that it was less likely than not due to his active service. The rationale provided was: Although the Veteran does have a positive diagnosis of Parkinson's Disease, "The Institute of Medicine and National Association of Scientists": concedes that agent orange exposure was only 1968-8/1971. Therefore, the date of May 1972 should be a NO association by current laws and regulations. The article presented by the Veteran that is addressed by Remand Document pg 228 in C-File to support his claim that residual herbicide agent chemicals remained in the Korean DMZ at least until his period of Service there beginning May 1972 is not supportive of this Veteran's claim; a single article from 1989 is not peer-reviewed and not in the Majority opinion of the VA examiners. A nexus has not been established. The remaining evidence of record details complaints associated with Parkinson’s disease but no discussion on its etiology. Based on the foregoing evidence of record, the Board finds that service connection is not warranted. The earliest record of Parkinson’s was in 2011, approximately 37 years after the Veteran’s discharge. This delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board’s denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, the Board finds that the record is silent for any medical evidence associating the etiology of the Veteran’s Parkinson’s disease to his active service. The Board has considered the Veteran’s statements linking his current Parkinson’s disease to his military service. In this regard, the Board notes the Veteran is competent to report symptoms experienced in service and since such time. However, the Veteran is not competent to attribute his current condition to any instance of military service. He has not demonstrated that he is an expert in determining the etiology of Parkinson’s disease and is a layperson in this regard. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson’s competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor to consider is the complexity of the question to be determined. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (providing an example at footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not to diagnose a form of cancer). In conclusion, the weight of the evidence is against the claim for service   connection for Parkinson’s disease. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. A. Elliott II, 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.