Citation Nr: A21017003 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 190827-27925 DATE: October 20, 2021 ORDER Entitlement to service connection for Parkinson's disease is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran served near the perimeter at U-Tapao Royal Thai Air Force Base (RTAFB) during the Vietnam Era; therefore, herbicide agent exposure during such service is presumed. 2. The Veteran has a current diagnosis of Parkinson's disease, a condition presumptively related to herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for Parkinson's disease are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from June 1962 to May 1977 and from April 1982 to November 1985, including service in Thailand. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran filed a VA Form 10182 (Decision Review Request: Board Appeal) and requested a hearing before the Board. In July 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. During the hearing, the Veteran waived the 90-day evidence submission window following the July 2021 hearing. Accordingly, the Board may proceed with adjudicating the claim. As an aside, the Board notes that the Veteran has a pending legacy appeal regarding claims for service connection for prostate cancer, heart disease, diabetes mellitus type II, and diabetic peripheral neuropathy of the bilateral upper and lower extremities. These issues will be addressed in a separate decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) and 38 U.S.C. § 7107(b). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for Parkinson's disease Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Paralysis agitans (also known as Parkinson's disease) is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases which are listed at 38 C.F.R. § 3.309(e), including Parkinson's disease, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d). In essence, if the veteran did not serve in the Republic of Vietnam during the Vietnam era or in Korea, in or near the Demilitarized Zone, between April 1, 1968 and August 31, 1971, actual exposure to herbicide agents must be verified through appropriate service department records or other sources for the presumption of service connection for an herbicide-related disease to be applicable. Otherwise, exposure to herbicide agents is not presumed. However, if actual exposure to herbicide agents has been established, the presumption of service connection found in 38 C.F.R. § 3.309(e) for herbicide-related diseases is applicable. In addition to exposure within the Republic of Vietnam, exposure to herbicide agents has been noted to have occurred in various places, including Thailand. VA has determined that U.S. Air Force veterans who served on certain RTAFBs, including U-Tapao RTAFB, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicide agents. Particularly, to benefit from the presumption of herbicide agent exposure at a RTAFB, a veteran must have served 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 military occupational specialty, performance evaluation, or other credible evidence. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran asserts that he was exposed to herbicide agents because of his duties near the air base perimeter at U-Tapao RTAFB and that this caused his Parkinson's disease. As an initial matter, the Veteran has a current diagnosis of Parkinson's disease. See January 2019 private diagnostic imaging report; July 2019 VA "Parkinson's Disease" examination report. Additionally, service treatment records (STRs) dated January 1970 to May 1972 corroborate the Veteran's service at U-Tapao RTAFB during the applicable time period to benefit from the presumption of herbicide agent exposure (namely, anytime between February 28, 1961 and May 7, 1975). Thus, the remaining question before the Board is whether the Veteran served near the air base perimeter at U-Tapao RTAFB. Turning to the evidence, in September 2014, the Veteran submitted photographs of his living quarters at U-Tapao RTAFB. A handwritten note on the back of one of the photographs indicated that the perimeter road and guard tower were located behind his living quarters. In Correspondence submitted with the photographs, the Veteran wrote, "we traveled perimeter road to get to our aircraft daily." In a May 2015 Statement in Support of Claim, the Veteran wrote, "I served as a B-52 Gunner of Utap[ao] Th[ai]land from Nov 07[,] 1969, as evidenced by Flight Records and Air Medal award, through Mar 5th[,] 1970 with daily trips on the perimeter roads traveling to aircraft revetments. During this time I lived in Modular Building 5 which sat butted up to the perimeter r[oa]d as evidenced by pictures previously sent in. We were exposed to defoliant regularly as the area around the b[uilding], perimeter r[oa]d and guard tower were sprayed. I also served at Utap[ao] from 31 Jan 1972 through May 18th[,] 1972 again traveling the perimeter roads and living near the sprayed area and guard tower. We were exposed to some wind driven overspray. These dates are supported through[] Flight Records with dates & time of flights of all [flights] under 7 h[ou]rs were from Utap[ao]..." In a September 2016 Statement in Support of Claim, the Veteran's fellow servicemember, D.O., wrote, "I was stationed with [the Veteran] in Utap[a]o Thailand. We shared the same hooch on the edge of the base. We would take the perimeter road to the flight lines most everyday as it was the quickest and easiest way to get there due to no veg[e]tation. The Thai would routinely spray the area with backpack sprayers. Both of us were there on two different occasions." The Board notes that "hooch" is military slang for living quarters. In a June 2018 Statement in Support of Claim, the Veteran wrote, "Concerning squadron records, the way B-52s were sent to Vietnam via TDY in 3 plane group, the squadron was actually stationed in KI Sawyer. I also sent my complete set of flight records showing when and where I flew out of. I have also supplied pictures of our hooch, which was right by the guard towers on the base perimeter...Any flight records less than 5 hours were out of Thailand, bomber crews all traveled the perimeter roads to get to the planes in school buses, these were not able to make it thru the base roads." In July 2021, the Veteran testified at separate hearings regarding his legacy and AMA appeals. At the legacy appeal hearing, the Veteran testified that his barracks was located right on the perimeter of the air base. In his duties as a B-52 crew member gunner, the Veteran explained that when he would go on a mission, he would be picked up by an open-air bus on the perimeter road of the base and driven down to where ammunition was stored. He testified that he saw a crew of Thai soldiers spraying the perimeter with backpack sprayers to defoliate the area. The Veteran further testified that he would do "FOD" (meaning foreign object damage) walks at a minimum of once a month, where he would have to walk the fence lines on both ends of the flight line to pick up any paper or debris that had accumulated in order to prevent any foreign items from going into an airplane's engine intake. The Veteran also testified that when he would leave the air base to travel to the closest town, he would be picked up right outside of the perimeter fence by a "flat bus" or Toyota pickup truck and taken down the perimeter road. At the July 2021 AMA appeal hearing, the Veteran testified that he was on the perimeter road of the air base every day because he had to ride down it every time he flew. He testified that the pickup and drop off point was on the perimeter road. He again testified that his barracks was right on the perimeter and that all the vegetation was stripped around the entire building with Agent Orange. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran served near the air base perimeter at U-Tapao RTAFB. The Veteran's military personnel records are consistent with his reported duties. Additionally, the September 2016 lay statement provided by his fellow servicemember, D.O., corroborates the Veteran's reports that his living quarters were at the edge of the air base and that he was on the perimeter road almost every day to get to the flight lines. The Board also finds it significant that the Veteran conducted "FOD" walks on at least a monthly basis which involved walking the fence line of the air base. The Board has no reason to doubt the Veteran's credibility and it finds his lay statements to be highly probative. Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the Veteran served near the air base perimeter during his service at U-Tapao RTAFB. As the Veteran has a current diagnosis of Parkinson's disease, and the Board has determined that he served near the air base perimeter at U-Tapao RTAFB such that he was presumptively exposed to herbicide agents during service, service connection for Parkinson's disease is warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.