Citation Nr: 21073508 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 19-25 673 DATE: December 8, 2021 ORDER Entitlement to service connection for Parkinson's disease is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran was exposed to herbicides during his active service. 2. The preponderance of the evidence is against finding that the Veteran has had a current diagnosis for Parkinson's disease during the period on appeal or recent thereto. CONCLUSION OF LAW The criteria for entitlement to service connection for Parkinson's disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 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 November 1962 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of a VA Regional Office (RO). This claim was remanded for additional development by the Board in a June 2021 decision. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. The former representative's motion to withdraw representation was granted in November 2021. 1. Entitlement to service connection for Parkinson's disease The Veteran asserts that he experiences Parkinson's disease that arose during or as a result of his active service, including as due to herbicide exposure. Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The nexus element may be fulfilled by (1) a nexus opinion or (2) competent and credible evidence showing that the veteran has experienced frequent and persistent symptoms of the disease since service. 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), (d); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the Board will first address whether the evidence of record supports the Veteran's assertion that he was exposed to herbicides during active service. Certain diseases, such as Parkinson's disease, have been determined to be associated with the use of herbicides in Vietnam (Agent Orange). 38 U.S.C. § 1116; 38 C.F.R. § 3.309. Veterans who served in the Republic of Vietnam are presumed to have been exposed to Agent Orange 38 C.F.R. § 3.307(a)(6)(iii). Veterans who were otherwise exposed to such herbicides may also take advantage of those presumptive health effects. However, unlike Vietnam veterans, they are required to prove that they were, in fact, exposed to herbicides during their military service. They do not have the benefit of a presumption of exposure as do Vietnam veterans. Nevertheless, even if a claimant is not entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). Personnel records show that the Veteran served at Naval Air Station Agana, Guam from 1963 to 1964. In an August 2018 statement in support of his claim, he reported that his duties as an aircraft mechanic required him to service C-123 planes which were bringing wounded service personnel back from Vietnam. Further, he reported that the planes were contaminated with Agent Orange and that his duties involved cleaning the planes. In August 2018, the Veteran submitted a lay statement by a former fellow service member supporting his contentions. However, the Veteran denied exposure to Agent Orange in his May 2009 application for benefits. Due to inconsistency, the Board finds the Veteran's statements regarding exposure to Agent Orange to be of limited probative value. While there is a presumption of herbicide exposure for Air Force members who regularly maintained C-123 planes involved in spraying herbicide agents, that presumption is not applicable to the Veteran because he served in the Navy. Further, in March 2016 the National Museum of the United States Air Force confirmed that the C-123 aircraft landing in Guam were on missions to ferry injured service personnel. In a July 2017 DPRIS Response, Aviation Historical Summaries OPNAV Form 5750-2s, submitted by NAS Agana, Guam, covering the period from September 30, 1962 to April 1, 1965 do not document that aircraft returned from the Republic of Vietnam contaminated with Agent Orange or other tactical herbicides. Moreover, in April 2017, VA noted that the Department of Defense had not identified any location on the island of Guam, including NAS Agana, where Agent Orange had been used, tested, stored, or transported. It was further noted that Agent Orange had been developed for jungle combat operations in Vietnam and had been used there from 1962 to early 1971. There were no combat operations on Guam during those years, and so there was no need for Agent Orange use there. Additionally, Guam was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships. Also, no scientific evidence available to VA shows that being in the vicinity of aircraft, equipment, or living or deceased personnel from Vietnam can be considered as exposure to active Agent Orange or can result in long-term health effects. The Board finds the objective historical record to be of greater probative value than the Veteran's recollections. Accordingly, the Veteran does not meet the criteria for a finding of exposure to Agent Orange. The Board finds that there is no presumption of exposure and no factual foundation that would establish actual exposure. Next, the Board will consider whether the Veteran is entitled to service connection on a direct basis. The Veteran's service treatment records (STRs) are negative for complaints, treatment, or diagnosis of Parkinson's disease. The Veteran's VA treatment records are negative for complaints, treatment, or diagnosis of Parkinson's disease in the 12-month period immediately following separation from active service. In a May 2018 private medical opinion, a private physician opined that the Veteran's tremors and chronic sensory symptoms, such as tingling, were due to him experiencing the early stages of Parkinson's disease. The Board notes that while the physician concludes that the Veteran's symptoms are consistent with Parkinson's disease, the physician does not indicate any testing beyond an in-person examination was performed to support their diagnosis. The private medical opinion also opines that the condition was connected to his military service, heart condition, which is not service-connected, and natural aging process. However, they do not offer a rationale for concluding that his condition was related to service, how likely that conclusion was to be true, or to what degree each of those causes was responsible for the development of Parkinson's. The physician is a medical professional who examined the Veteran in person. However, the Board also notes a lack of testing to confirm their assessment and the lack of a rationale to support their etiological opinion. Accordingly, the Board only lends this opinion minimal probative weight. In a June 2019 VA treatment record, the physician noted tremors consistent with Parkinson's disease. The Veteran denied a history of or treatment for the condition. This is the only reference to Parkinson's disease in the Veteran's VA treatment records. During the Veteran's June 2021 VA examination for Parkinson's disease, the examiner noted that the only diagnosis for the condition was the provisional diagnosis in the May 2018 private medical opinion. Based on their review of the Veteran's medical history, the VA examiner opined that they did not find firm evidence of a true diagnosis for Parkinson's disease. Additionally, the examiner opined that even if the Veteran did have a diagnosis for Parkinson's disease, without exposure to herbicides, there was no other potential cause of Parkinson's disease related to service. Consequently, they opined that it was less likely than not that he had a diagnosis of Parkinson's disease that was at least as likely as not incurred in or caused by his military service. The Veteran has consistently asserted that he experiences Parkinson's as a result of in-service herbicide exposure. In considering the Veteran's contentions, the Board notes that he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a medical disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the June 2021 VA examination opinion and medical evidence of record. The Board finds the preponderance of the evidence is against the Veteran's claim and against concluding that he has had a current diagnosis for Parkinson's disease during the period on appeal. The Board acknowledges that in the May 2018 private medical opinion, the private physician opined that the Veteran's tremors and chronic sensory symptoms were due to him experiencing the early stages of Parkinson's disease; and in a June 2019 VA treatment record, the physician noted tremors consistent with Parkinson's disease. Conversely, the rest of the medical evidence of record is negative for a diagnosis of or treatment for the claimed condition. Additionally, during the June 2021 VA examination, the VA examiner found that a true diagnosis for the condition had never been rendered, and they found insufficient evidence to support such a diagnosis. The VA examiner reviewed the Veteran's entire medical history before rendering their opinion. There is no indication that the private physician performed the same level of review or that the performed any testing to confirm the provisional diagnosis they provided. Therefore, the Board finds the VA examination report to be of greater probative weight than the private medical opinion. Based on these facts, the Board finds that the preponderance of the evidence is against finding that the Veteran has had a current diagnosis for Parkinson's disease during the period on appeal. Additionally, even if the Veteran does have Parkinson's disease, the Board finds that the preponderance of the evidence is against concluding that the condition arose during or as a result of his active service. As discussed above, there is insufficient evidence to support the Veteran's assertion that he was exposed to herbicides during service. His STRs are also negative for any mention of the claimed condition. The first mention of the condition is in the 2018 private medical opinion, more than 50 years after separation from active service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered as evidence against a claim of entitlement to service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the 2018 opinion linked the claimed condition to service, it did not provide a rationale for this conclusion and also attributed it to his heart condition and the natural aging process. In the June 2021 VA examination, the examiner opined that if the Veteran was positive for his claimed condition, without exposure to herbicides, there was no likely cause of his condition related to service. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection. Accordingly, the claim for service connection for Parkinson's disease is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.