Citation Nr: 21072205 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-48 277A DATE: December 2, 2021 ORDER Entitlement to service connection for Parkinson's disease is denied. FINDING OF FACT 1. The Appellant's service did not include duty in or visitation to the Republic of Vietnam and he has no qualifying service in Korea or Thailand. 2. The preponderance of the evidence weighs against a finding that the Appellant was exposed to Agent Orange during his active duty training (ACDUTRA) from April 1967 to May 1967 at Fort Ord, California. 3. The preponderance of the evidence shows that Parkinson's disease was not present in service or until many years thereafter and is not otherwise related to a disease or injury of service origin. CONCLUSION OF LAW The criteria for entitlement to service connection for Parkinson's disease, to include as due to Agent Orange exposure have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veteran's Appeals (Board) on appeal from a March 2014 decision. The Appellant presented testimony before the Board in October 2021. Entitlement to service connection for Parkinson's disease Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106, 1110, 1131. Other specifically enumerated disorders, including other organic diseases of the nervous system like Parkinson's disease, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101 (21) and (24); 38 C.F.R. §§ 3.6 (a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6 (c)(3). In this regard, in order to establish service connection for the claimed disorders, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran who, during military service, served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The presumptive provisions of 38 U.S.C. § 1116 have been extended to encompass veterans shown to have been otherwise exposed to tactical herbicide agents in service, including while serving in Thailand, or on the DMZ in Korea. Finally, it is presumed for an Air Force or Air Force Reserve veteran who regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to apply herbicides. 38 C.F.R. § 3.307 (a)(6)(v). If there is no official documentation of service at any of the aforementioned locations or as an airman working with C-123 aircraft that results in a presumption of exposure to herbicide agents, such exposure may be established on a facts-found basis. 38 U.S.C. § 1113 (b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Exposure is thus a matter of fact to be determined by the Board. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service and has contracted an enumerated disease, including Parkinson's disease, the veteran is entitled to a presumption of service connection for such disease even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). The Board notes the Appellant served in the United States Army Reserves from 1966 to 1972. There is no indication he served on active duty. These presumptions only apply to active duty service. See 38 C.F.R. § 3.309 (e). Therefore, if the Appellant was exposed to herbicide agents during a period of ACDUTRA or INACDUTRA, and this exposure caused his current Parkinson's disease, then this period of reserve service would be considered active duty for VA purposes and service connection would be warranted. The Appellant maintains that he developed Parkinson's disease due to exposure to Agent Orange during his ACDUTRA in Fort Ord, California. Specifically, he contends he worked guard duty and was exposed to drums that contained Agent Orange. The first question for the Board is whether the Appellant has a current disability. The second question is whether he has a current disability that is a chronic disease associated with herbicide exposure and whether he had such exposure during service. The final question is whether he was disabled from disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA or disabled from an injury incurred in or aggravated during a period of INACDUTRA. At the outset, the Board finds it is undisputed that the Appellant has a current disability. Post-service treatment records reveal that the Appellant was diagnosed with Parkinson's disease in 1998. Turning to the next question, Parkinson's disease is a disease associated with herbicide exposure. 38 C.F.R. § 3.309 (e). The applicable presumptive period for manifestation of Parkinson's disease is any time after service. 38 C.F.R. § 3.307 (a)(6)(ii). As such, the fact that the Appellant's diagnosis was not made until 1998, about 26 years after his separation from Reserve service is not problematic. Exposure to tactical herbicides during his service cannot be presumed, however. There is no indication that he served in the Republic of Vietnam, Thailand, or on the DMZ in Korea. The Appellant was not in the Air Force. The Veteran does not contend to the contrary regarding the aforementioned. However, although herbicide exposure during service cannot be presumed, service connection still may be granted if such exposure is established. Combee v. Brown, 38 F.3d 1039 (Fed. Cir. 1994). As indicated above, the Appellant asserts that his exposure to herbicides occurred during his ACUTRA at Fort Ord, California. Specifically, while performing guard duty. Military personnel records confirm such service from April 1967 to May 1967. However, they do not confirm he was performing guard duty. These records reveal he was at Fort Ord for Advanced Individual Training (AIT). Moreover, the preponderance of the evidence weighs against finding that he was exposed to tactical herbicides there. Neither service treatment nor personnel records mention such exposure. In March 2014, the Department of Defense (DOD) indicated that their list did not show any use, testing, or storage of tactical herbicides at Fort Ord, California. There was also no reference to routine base maintenance activities such as range management, brush clearing, and weed killing since these were accomplished with commercial herbicides on all military bases worldwide, which do not fall under the regulations governing tactical herbicides such as Agent Orange. The RO issued a formal finding in March 2014 that the evidence did not establish the Appellant's exposure to Agent Orange. The Appellant has submitted articles supporting his contention that he was exposed to herbicides at Fort Ord, California. An article was on a neighborhood clean-up at Fort Ord and indicated that hazardous waste and military munitions were first identified there in 1994. The Appellant also submitted an article containing a list of military bases on the EPA Superfund list in 2013, which did include Fort Ord. However, in neither article was there any documentation or indication that tactical herbicides were used, stored, or tested at Fort Ord in 1967 or that the Appellant himself was exposed to herbicides while stationed there. The Board notes the Appellant also submitted an article that included a listing of locations of herbicide use at military locations where Agent Orange was used but did not include Fort Ord as a location. The Board acknowledges the buddy statement the Appellant submitted indicating that the Appellant told him he was guarding chemicals by the airfield in Fort Ord that were being sent to the Vietnam and he "believed" the chemicals were Agent Orange. However, this statement alone does not demonstrate that the Appellant was exposed to Agent Orange. In summation, the Appellant has not factually established exposure to herbicides, specifically Agent Orange. Even assuming he did perform guard duty protecting drums filled with a substance, he is not competent to attest that the substance was Agent Orange. Moreover, no military source has documented such exposure to herbicides. The evidence from the DOD carries substantial probative weight. Turning to the third question, the preponderance of the evidence weighs against finding that the Appellant's Parkinson's disease began during his Reserve service, to include any period of ACDUTRA where he was disabled from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA where he was disabled from injury incurred in or aggravated in the line of duty. Notably, the Appellant has not claimed, nor does the record reflect, that he developed Parkinson's disease due to any other incident in service. His service treatment records do not contain complaint, treatment, or diagnosis of Parkinson's disease or any associated symptoms. By the Appellant's own sworn testimony in 2021, he did not begin experiencing symptoms until 30 to 35 years ago, so approximately 1986 to 1991, and he was not diagnosed with Parkinson's disease until 1998, which was many years following his service. Thus, there is no evidence of an in-service disease or injury or incident other than that which the Appellant has previously described (exposure to Agent Orange). The Board is cognizant that to date it has neither afforded the Appellant a medical examination, nor has it solicited a medical opinion regarding his claimed Parkinson's disease. However, no VA examination is necessary to satisfy the duty to assist in the case. Under 38 U.S.C. § 5103A (d)(2), VA must obtain a medical examination or opinion when such is necessary to decide on a claim. Specifically, a VA examination is required where the record contains competent evidence of a current disability and indicates that the disability or symptoms may be associated with military service but does not contain sufficient evidence for the Secretary to make a decision. Here the preponderance of the evidence reveals that although the Appellant has Parkinson's disease, he was not exposed to Agent Orange during his ACDUTRA at Fort Ord. Moreover, the Appellant has not asserted, nor do his service treatment records indicate, any other in-service disease or injury that may be associated with his current disability. As such, no VA examination is necessary. Service connection for Parkinson's disease therefore must be denied. The Board recognizes the sincerity of the Appellant's belief that he is entitled to this benefit as well as the effort he has made to prove it. Unfortunately, however, the criteria to establish service connection have not been met under any applicable theory of entitlement. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.