Citation Nr: 21067985 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 13-25 181 DATE: November 8, 2021 ORDER Entitlement to service connection for Parkinson's disease is denied. FINDINGS OF FACT 1. The Veteran does not have verified service in the Korean Demilitarized Zone (DMZ) during the Vietnam Era, and herbicide agent exposure is not conceded. 2. Parkinson's disease is not attributable to the Veteran's active service and may not be presumed to have been incurred during such service. CONCLUSION OF LAW The criteria for service connection for Parkinson's disease have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1966 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) San Juan, Puerto Rico. In May 2018, the Board issued a decision denying entitlement to service connection for Parkinson's disease. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Memorandum Decision, the Court vacated and remanded the case to the Board for action consistent with the Order. This case was most recently before the Board in June 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, this matter was remanded to contact the appropriate entities to determine the location of "PYON-TEC" in relation to the DMZ. A Joint Services Records Research Center (JSRRC) response was received in September 2021. The Board therefore determines that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action. Service Connection Parkinson's Disease The Veteran seeks entitlement to service connection for Parkinson's disease as a result of his active service. Specifically, the Veteran and his representative assert that he was exposure to herbicide agents during his service at the Korean DMZ. See e.g. VA Form 9, August 27, 2013. In this case, the Veteran does not assert that he had service in the Republic of Vietnam, nor does he assert that his Parkinson's disease had its onset during active service. 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: (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). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from exposure to an herbicide agent (including Agent Orange), 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 demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service-connected even though there is no record of such disease during service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). Additionally, veterans who had active service between April 1, 1968, and August 31, 1971 in a unit that operated in or near the Korean DMZ in an area in which herbicides agents are known to have been applied, shall be presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iv). For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Various VA treatment records and private medical records confirm a diagnosis of Parkinson's disease. The Veteran's primary contention in this appeal has been that his Parkinson's disease is related to his active service based on reported herbicide agent exposure in Korea. As noted above, the Veteran has not raised, and the record does not otherwise indicate entitlement based on, other theories of service connection. In this regard, with respect to direct service connection, the Veteran has not identified, and the service treatment records do not otherwise identify, any other in-service event (beyond the reported herbicide agent exposure) that the Veteran's Parkinson's disease could be related to. With respect to the potentially applicable presumption related to chronic disease, the evidence did not show manifestations sufficient to identify the disease entity during the Veteran's active service. See 38 C.F.R. § 3.303(b). In addition, the earliest diagnosis of record of Parkinson's disease appears to be in 2004, more than one year from the Veteran's August 1969 separation from active service, and the Veteran has not asserted that Parkinson's disease became manifest during that relevant time period (one year after separation from active service). See 38 C.F.R. § 3.307(a)(3). Overall, entitlement to service connection is not warranted on a direct basis or based on the presumption related to chronic disease. Accordingly, the Board will focus on the determinative issue in this appeal of whether the Veteran was exposed to herbicide agents during his active service. The Veteran's personnel records indicated that he served in Korea from December 28, 1966 to January 27, 1968. His principal duty during this time period was noted as "Engr. Parts. Sp." and "Engr. Parts Spec." His organization and station or theater during this time period was noted as "Co A 802d Engr Bn (Const) USARPAC-Korea." The Veteran filed the claim on appeal in November 2009 and on the VA Form 21-526 (Veteran's Application for Compensation and/or Pension) he reported being exposed to Agent Orange or other herbicides in Korea and stated that his disability was Parkinson's disease. He also stated that "I was in the army along the DMZ in Korea during my military career." In the June 2011 Notice of Disagreement (NOD), the Veteran stated that "I was stationed in Korea at PYON-TEC (Near by the DMZ) and performing duties as Engineer at the DMZ and attached to the 2nd Brigade." He referenced an attached statement that was "taken directly from the internet in which clearly stated support personnel from Artillery, Signal and Engineer troops were supplied as support personnel were used during the time period where I was assigned in Korea." The referenced attached statement was noted as being printed from http://www.veteransinfo.org/korea.html. The statement generally discussed herbicide agents and Korea. Bolded was the language that "[e]ngineer troops were supplied as support personnel as required." The Veteran also requested in his NOD that VA "be able to grant me service connection for Parkinson['s] diseases since this condition [] is related to be[i]n[g] exposed to herbicides while in Korea." On the August 2013 VA Form 9, the Veteran stated that "[as] my duties as truck driver and supply, I was driving through the DMZ in a regular basis without knowledge of any herbicides. Even though my Unit was assigned in the middle of Korea my duties was provide support to the Units at the DMZ." Potentially relevant to the Veteran's claim, 38 C.F.R. § 3.307(a)(6)(iv) states that: a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See also 38 C.F.R. § 3.814(c)(2). As outlined above, the Veteran served in Korea from December 28, 1966 to January 27, 1968. This service is prior to the dates outlined in the regulation. As such, the presumption of herbicide agent exposure outlined in 38 C.F.R. § 3.307(a)(6)(iv) is not applicable to the Veteran and herbicide agent exposure based on the Veteran's Korea service cannot be presumed. While the Veteran cannot be presumed to have been exposed to herbicides agents in service, the Board must also consider whether the evidence of record indicated that the Veteran was otherwise directly exposed to herbicide agents in service. In this regard, the Veteran's primary contention, as outlined above, is that while serving in Korea he was, essentially, in or near the DMZ. Even assuming (without deciding) for purposes of this decision that the Veteran operated in or near the Korean DMZ during his active service, this alone is not sufficient to establish his exposure to herbicide agents during this time period. As noted, the presumption of herbicide agent exposure outlined in 38 C.F.R. § 3.307(a)(6)(iv) is limited to the time period of April 1, 1968 to August 31, 1971. In this regard, in VA's proposed rule creating 38 C.F.R. § 3.307(a)(6)(iv), it stated that the Department of Defense (DoD) "has advised that herbicides were not applied within the DMZ, but were applied in some adjacent areas" and that "[s]pecifically, DoD has reported 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." See 74 Fed. Reg. 36640 (July 24, 2009). As such, objective and official evidence from DoD indicates that herbicide agents were not used in or near the Korean DMZ until after the Veteran's active service in Korea. In addition, the Veteran has not specifically described how he was exposed to herbicide agents, but rather generally asserted that he served in or near the DMZ. On the August 2013 VA Form 9, the Veteran stated he "was driving through the DMZ in a regular basis without knowledge of any herbicides." Based on this statement, the Veteran did not describe a situation where he was directly exposed to herbicide agents, but rather he stated that he was in the DMZ and that he was "without knowledge of any herbicides." This suggests that at the time of his active service in Korea the Veteran did not observe any particular substance that he thought was an herbicide agent or report that he entered and performed any duties in a defoliated area. Moreover, the Veteran would not be competent to identify that a particular substance he observed was in fact an herbicide agent, as the chemical compound that triggers presumptive service connection is specifically defined by regulation and the identification of such is not something that lay persons without special training would be competent to identify. See 38 C.F.R. § 3.307(a)(6) (referencing the term "herbicide agent" as specifically meaning "2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram"). The Board notes that the Veteran's service in Korea occurred prior to April 1, 1968, as discussed above, and that his unit during his service in Korea (the 802nd Engineer Battalion) is not on the DoD list of identified units. See id. The Agency of Original Jurisdiction (AOJ) did not initially send a request to the JSRRC in this case and in July 2016 issued a memo to the file that stated that "[w]e have determined that the information required to corroborate that [V]eteran was exposed to herbicides is insufficient to send to" the JSRRC. A May 2010 letter to the Veteran stated that "[w]e need to know how your military duties exposed you to herbicides" and "[i]f you did not serve in Vietnam, we need to know when, where, and how you were exposed." Pursuant to a November 2019 Court Memorandum Decision, and as noted above, the claim was most recently before the Board in June 2020. At that time, the June 2020 Board remand directed the RO to further develop the claim, and request to the JSRRC to attempt to verify the Veteran's claimed herbicide exposure during his service. The directed JSRRC response was completed in September 2021, and set forth the following: the Veteran was assigned the 802nd Engineer battalion, Company A, and that the Company operated out of Camp Humphreys, In Pyeongtaek, Korea during 1967 and 1968. A review of the 1967 and 1968 unit histories submitted by the 802nd Engineer Battalion (Construction) reveals that Company A operated out of Camp Humphreys in Pyeongteak, Korea during both years The 1967 history reveals that after an Operational Readiness Test early in the year, Company A continued support of Companies B and C while operating a quarry in the vicinity of Camp Humphreys and also continued to maintain the access road between Pyeongteak and Camp Humphreys. The history reveals that toward the end of construction season, all companies combined forces and labored day and night, weekends and holidays, to complete the by-pass around the city of Pyeongteak and the reinforced concrete structure so it could be used during the 8th Army Exercise Strongshield in early October. Throughout 1967 the A Company continued to maintain the access road from Pyeongteak to Camp Humphreys. The 1968 unit history reveals that A Company continued operation of the rock quarry at the Asphalt Plant at Osan early in the year. Then in March, A Company began the Pyeongteak by-pass road during this period of time. The September 2021 JSRRC response does not document any specific duties performed by the unit on or near the DMZ, and does not confirm the Veteran's presence on or near the Korean DMZ during his active service. An August 2017 article from the RAND Corporation detailing the Pyeongtaek Garrison in Korea and the ongoing consolidation effort to reduce the number of United States sites in the country. This article indicated that there is a Pyeongteak hub with Osan Air Base 15 kilometers north of Camp Humphreys and that Camp Humphreys is roughly 100 kilometers from the closest part of the DMZ. The September 2021 JSRRC response indicates that the Veteran was assigned to Company A of 802nd Engineer battalion, that Company A operated out of Camp Humphreys and that Company A supported others in operating a quarry in the vicinity of Camp Humphreys and also continued to maintain the access road between Pyeongteak and Camp Humphreys in 1967. The September 2021 JSRRC response also indicated that A Company continued operation of the rock quarry at the Asphalt Plant at Osan early in the year in 1968. Based upon the response from the September 2021 JSRRC and the foregoing, the Board finds that the Veteran was not shown to have served on or near the DMZ. The JSRRC response detailed where the Veteran's company served in 1967 and 1968 and the article submitted by the Veteran indicated that Camp Humphreys was about 100 milometers from the DMZ while Osan Air Base was 15 kilometers north of Camp Humphreys. Contrary to the Veteran's assertions, the unit histories of 802nd Engineer battalion place Company A approximately 100 kilometers from the DMZ in 1967 and 1968. Therefore, exposure to herbicides has not been verified. Even in consideration of the Veteran's military occupational specialty (MOS) of equipment repairs specialist, his active service in Korea, his statements of performing duties at or near the Korean DMZ, and his one year, seven months, and 12 days of foreign service as shown on his DD Form 214, the Board finds that the preponderance of the evidence is, against a finding that the Veteran had herbicide agent exposure during his active service on either a direct or presumptive basis. Notably, the Board notes that veterans who had active service between April 1, 1968, and August 31, 1971 in a unit that operated in or near the Korean DMZ in an area in which herbicides agents are known to have been applied, shall be presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iv). Here, the Veteran has confirmed service in Korea, but that his service predates April 1, 1968 as prescribed in 38 C.F.R. § 3.307(a)(6)(iv). Additionally, even in consideration of the Veteran's lay statements and contentions, the Board cannot find that the Veteran had direct exposure to herbicide agents during active service. In this regard, the Veteran has generally asserted exposure, and the Veteran has not specifically described how he was exposed to herbicide agents. As discussed above, the Veteran would not be competent to identify that a particular substance he observed was in fact an herbicide agent, as the chemical compound that triggers presumptive service connection is specifically defined by regulation and the identification of such is not something that lay persons without special training would be competent to identify. See 38 C.F.R. § 3.307(a)(6) (referencing the term "herbicide agent" as specifically meaning "2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram"). In sum, the Board finds that the Veteran was not exposed to herbicide agents during his active service, either on a presumptive or a direct basis. The Board additionally finds that Parkinson's disease is not attributable to the Veteran's active service and may not be presumed to have been incurred during such service. As such, the Board concludes that the criteria for service connection for Parkinson's disease are not met and therefore his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.