Citation Nr: 21065575
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 18-34 567
DATE: October 26, 2021

ORDER

Entitlement to service connection for Parkinson's disease, to include as due to toxic herbicide exposure is denied.

FINDINGS OF FACT

1. The Veteran did not serve in a unit stationed in the Korea Demilitarized Zone (DMZ); thus, there is no presumption that he was exposed to herbicides (including Agent Orange) while serving on active duty.

2. The Veteran's Parkinson's disease did not have onset during active service and is not otherwise related to service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for Parkinson's disease, to include as due to toxic herbicide exposure have not been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309(e)

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served in the Army from September 1968 to April 1971. 

This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 Regional Office (RO) rating decision.

The Veteran testified at a July 2021virtual hearing before the undersigned Veterans Law Judge.  A hearing transcript is of record.

Service Connection

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304.  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).

Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 

Service connection may be presumed for certain diseases, including Parkinson's disease, for veterans who were exposed to an herbicide agent such as that found in "Agent Orange" during active service. See 38 C.F.R. § 3.309 (e). Exposure to herbicide agents is presumed for veterans who served in the Republic of Vietnam, during the Vietnam Era (from January 9, 1962 to May 7, 1975). 38 U.S.C. § 1116 ; 38 C.F.R. § 3.307 (a)(6). Furthermore, exposure to herbicide agents is presumed for veterans who served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during this period. 

Recent legislation has added 38 U.S.C. § 1116B, which provided for a presumption of herbicide exposure for certain veterans who served in Korea, effective January 1, 2020. See Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23 (2019) (codified at 38 U.S.C. § 1116 B). Specifically, the legislation provides that the presumption of exposure will apply to a veteran "who, during active military, naval, or air service, served in or near the Korean [DMZ], during the period beginning on September 1, 1967, and ending on August 31, 1971."

1. Entitlement to service connection for Parkinson's disease, to include as due to toxic herbicide exposure 

The Veteran contends that his Parkinson's disease is due to exposure to Agent Orange during service. Specifically, the Veteran testified that he was exposed while working in the communication headquarters while stationed at Hill 468 in Korea near the DMZ.

The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease, including herbicide exposure.

The Board concludes that, while the Veteran has a current diagnosis of Parkinson's disease, the preponderance of the evidence weighs against finding that the disease began during service or is otherwise related to an in-service injury, event, or disease, including herbicide exposure. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), (d).

As an initial matter, the Veteran's personnel records show service from January 1970 to April 1971 in Korea. However, DPRIS response from May 2018 indicated that the records document that the Veterans unit, is not one of the units recognized by the Department of Defense as a unit that served at the DMZ.  

Moreover, the evidence does not demonstrate that the Veteran served near the DMZ for purposes of 38 C.F.R. § 3.307.  As an initial matter, what constitutes "near" the DMZ for purposes of 38 C.F.R. § 3.307(a)(6)(iv) has not been defined, although the Board does find it instructive that VA's notice of proposed rulemaking explained that "herbicides were applied between April 1968 and July 1969 along a strip of land 151 miles long and up to 350 yards wide along the southern edge of the DMZ north of the civilian control line," and that where applied, herbicides were hand sprayed or hand distributed in pelletized form.  Aerial spraying, like was done in Vietnam, was not performed.  See Hall v. McDonald, 2016 U.S. App. Vet. Claims LEXIS 1853, Footnote 1 (November 30, 2016), referencing Herbicide Exposure and Veterans With Covered Service in Korea, 74 Fed. Reg. 36,640, 36,641 (July 24, 2009).

The Board also notes that 38 C.F.R. § 3.307(a)(6)(iv) arose from the enactment of the Veteran's Benefits Act of 2013, 108 P.L. 183, 117 Stat. 2651 (December 16, 2003). Both the statute and the resulting VA regulation specifically prescribe that what constituted service "near" the DMZ was a determination to be made by the Department of Defense, not VA.

These two factors lead to the conclusion that toxic herbicide exposure for Veterans serving along the DMZ is not akin to those Veterans who served in the Republic of Vietnam, and should be much more narrowly tailored. This makes intuitive sense, as it appears uncontested that the application of toxic herbicides along the DMZ was of much smaller scale and more localized than the broad aerial spraying that occurred in Vietnam. Accordingly, the Board believes that the term "near" was meant for Veterans who were effectively "at" the DMZ. Moreover, it does not appear that the Board is statutorily allowed to acknowledge exposure to veterans who did not serve in the units specifically recognized by the Department of Defense.

Here, the Veteran's unit was located at Yongsan, South Korea and do not document any individual duties performed by members of the unit such as telephone communications on Hill 468 or traveling to different sites. In addition, the records do not document the use, storage, spraying, or transporting of tactical herbicides to include Agent Orange. Further, the records do not mention or document any specific duties performed by members of the unit along the DMZ.  There is no evidence of service in or near the DMZ. In a February 2014 Memorandum, the RO made a formal finding that no record of herbicide exposure was found. 

The Veteran himself does not allege that he was stationed at the DMZ, but instead contends that herbicides were used in the area near Camp Red Cloud. In support of his contention, the Veteran testified during his 2021 board hearing, that he thinks Agent Orange was used in the area because there were no trees, vegetation, or anything there for 17 months. However, the mere anecdotal recollections regarding the absence of vegetation is not sufficient for the Board to leap to the conclusion that toxic herbicides must therefore been used.  Especially in light of the fact that there has not been any acknowledged use of such herbicides outside of the DMZ.  Moreover, the Board independently notes that Camp Red Cloud was approximately 20 miles from the DMZ, and is not "near" the DMZ, as required by the regulation.  

Next, although the Veteran's primary assertion regarding his Parkinson's disease has been addressed above, he is not precluded from establishing service connection for them with proof of actual direct causation as due to active duty service. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994).

As an initial matter, the service treatment records do not indicate any symptoms related to Parkinson's disease in service, nor would such symptoms be reasonably expected.  Indeed, post-service medical records document treatment for Parkinson's disease in 2007, approximately 36 years after service. Moreover, the Veteran has not asserted that such symptoms were present since service.

Moreover, the evidence does not otherwise indicate that the Veteran's Parkinson's disease related to service.  There is no competent evidence establishing the requisite injury, disease, or event during service to which the current disorder can be linked.  Moreover, as there was no evidence of in-service symptoms, acquiring a VA opinion would have been unhelpful in this matter. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon, 20 Vet. App. 79 (2006).

Finally, the Board respects the Veteran's contention that his Parkinson's disease is due to his service in Korea, including herbicide exposure.  However, such assertions requires medical expertise to render. He has not demonstrated such expertise. While the Veteran is competent to report what he observed, he is not competent as a layperson to establish that chemical agents were used in the areas he served or that such chemicals caused his current condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Absent competent and credible evidence of actual exposure, the Board does not concede exposure to herbicide agents. As such, a presumptive service connection finding would be unwarranted here.

The Board acknowledges the positive nexus opinions submitted by the Veteran. Specifically, a November 2013 correspondence from the Veterans treating physician at Mansfield Neurology indicated that the Veteran was stationed in Korea during parts of 1969 through 1971 and it is the treating physicians understanding that Agent Orange was used near the vicinity.  In a July 2015 statement, a nurse practitioner at Ohio State University, stated that there is a strong suspicion that environmental factors have a role to increased risk of the development of Parkinson's disease and there has been a strong correlation of people with Parkinson's disease with significant pesticide and herbicide exposure. Therefore, they opined that the Veterans Parkinson's disease could possibly be caused by Agent Orange. They further noted that it is also possible that other environmental factors or occupational exposure during the Veterans time spent in Korea was the contributing factor. Further, in November 2018, a clinical assistant professor of neurology stated that it is possible that Agent Orange or other environmental toxin exposure during his time spent in Korea between 1969 to 1971 may have triggered his disease. 

However, the Board notes that these opinions are based on the Veterans reports that he was stationed near an area where Agent Orange was used. As explained above, there is no evidence of exposure to herbicide agents in service. Therefore, these private opinions are provided no probative weight regarding nexus.

For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for Parkinson's disease. Thus, his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica