Citation Nr: 21008284 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 20-04 438 DATE: February 16, 2021 ORDER Entitlement to service connection for Parkinson’s disease, to include as a result of exposure to herbicides, is denied. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides during his period of active service, including during his service in Thailand. 2. The Veteran’s Parkinson’s disease is not etiologically related to service. CONCLUSION OF LAW The criteria for the establishment of service connection for Parkinson’s disease, to include as due to herbicide exposure, are not met. 38 U.S.C. §§ 1110, 1116, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1967 to May 1970. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that decision. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). Entitlement to service connection for Parkinson’s disease Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Parkinson’s disease, also known as paralysis agitans, is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of a “chronic” disease 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 a 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). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as Parkinson’s disease, 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. Id. Applicable law also provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Exposure to Agent Orange has been noted to have occurred in various places, including Thailand. VA has determined that veterans who served on Royal Thai Air Force (RTAF) bases at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961 and May 7, 1975, may have been exposed to herbicides. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. VA has established specific procedures for verifying exposure to herbicides in Thailand during the Vietnam Era. See VA Adjudication Manual, M21-1, Part IV, Subpart ii, Chapter 1, Section H. VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.” Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those veterans whose duties placed them on or near the perimeters of Thailand military bases. This allows for presumptive service connection of the diseases associated with herbicide exposure. The majority of troops in Thailand during the Vietnam era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang. If a veteran served on one of these air bases 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 MOS, performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts found or direct basis. However, this applies only during the Vietnam era. The diseases presumed to be associated with herbicide exposure include: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes (also known as type II diabetes or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For the purposes of § 3.307, 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 C.F.R. § 3.307 (a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); Final Rule, 74 Fed. Reg. 21,258-260 (May 7, 2009); Final Rule, 75 Fed. Reg. 53,202-16 (Aug. 31, 2010). The Board notes that the Veteran’s service personnel records show that he served in Camp Vayama, Thailand for 18 months with a MOS of ordnance specialist. His records do not indicate, nor has the lay evidence been provided that the Veteran served as a security policeman, security patrol dog handler, or member of a security police squadron. Moreover, review of the Veteran’s personnel records do not indicate that the Veteran served on or near the air base perimeter at the Royal Thai Air Force Base (RTAFB) in U-Tapao. The Veteran’s duties as an ordnance company maintenance and supply officer involved working in an ammunition storage area and keeping the equipment operational. The Veteran stated that he would travel through the RTAFB in U-Tapao on a weekly basis to check for safety and security problems. In addition, the Veteran claimed his duties placed him near areas where herbicides were used to clear Camp Vayama’s perimeter fence area of jungle vegetation. See September 2018 letter. In support of his claim, the Veteran has submitted documents, including a picture of the location where he was quartered to demonstrate his proximity to the perimeter of Camp Vayama. In addition, the Veteran submitted two lay statements from members of the same company, stating the Veteran’s duties included supplying the necessary ammunition for the military planes at the RTAFB in U-Tapao. See December 2017 lay statements from P.G. and R.W. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Id. VA rules and regulations concede herbicide agent exposure for those stationed at Royal Thai Air Force Base in Thailand when that individual was either a member of the military police or had a military police occupational specialty with job duties on the perimeter of the base. The Veteran’s MOS as an ordnance specialist does not fit this description. Even if the Veteran traveled to the RTAFB in U-Tapao on a weekly basis, the record does not contain competent, credible evidence that the Veteran had duties around the perimeter of a Royal Thai Air Force Base. Accordingly, the Board finds that the Veteran’s is not presumed to have been exposed to herbicides during his service in Thailand. The Board also finds that the competent, credible evidence does not reflect that the Veteran had direct contact with an herbicide agent during his active service. Notably, the Veteran submitted an aerial photograph noting that the location of his quarters at Camp Vayama was less than 100 yards from the Camp’s perimeter security fence; the Veteran posited that herbicides were used to clear the area of jungle vegetation. However, as none of the evidence of record indicates that the Veteran directly contacted any herbicide agent, the Board finds that the evidence weighs against a finding that the Veteran had direct contact with an herbicide agent. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson’s assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). The Board also notes that the Veteran’s Parkinson’s disease was first diagnosed in 2012, over 40 years after discharge from service. Accordingly, the Board finds that symptoms of Parkinson’s were not chronic in service and continuous after service separation. Because Parkinson’s disease did not manifest to a compensable degree in service or within one year of service separation, the Board finds that the presumption of service connection under 38 C.F.R. § 3.303 is not warranted. The Board also finds that the weight of the evidence does not support direct service connection for Parkinson’s disease. There is no evidence of complaints related to, treatment for, or diagnoses of the disability during active service, and there is no indication of symptoms, treatment, or diagnoses for the disability until decades after service separation. The evidence of record does not relate currently diagnosed Parkinson’s disease to service. As such, the Board finds that the weight of the evidence shows that service connection for Parkinson’s disease is not warranted. (Continued on the next page)   For the reasons discussed above, a preponderance of the evidence is against the claim for service connection for Parkinson’s disease. Because the preponderance of the evidence is against the Veteran’s appeal, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.