Citation Nr: 21023840 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-62 483A DATE: April 21, 2021 ORDER Service connection for Parkinsonism is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran served in the Republic of Vietnam or the coastal waters of Vietnam, or that he otherwise was shown to have exposure to herbicide agents as a result of his military service. 2. The preponderance of the evidence of record is against a finding that Parkinsonism began during active service, to include exposure to radiation or asbestos. CONCLUSION OF LAW The criteria for service connection for Parkinsonism have not been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107; 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1946 to April 1967. This matter is on appeal from a July 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran asserts that his Parkinsonism is due to in-service exposure to herbicides, in-service exposure to radiation, and/or in-service exposure to asbestos. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Initially, the Board notes that the Veteran does not assert that Parkinsonism was diagnosed during service or that he had symptomatology related thereto due to service, and the evidence of record does not support a direct relationship to service. Service treatment records do not reflect any complaints of, treatment, or diagnosis of Parkinsonism. Moreover, a December 2020 examiner reviewed the claims folder and found no evidence of any symptoms of parkinsonism or Parkinson’s disease, or any other neurologic condition, during service or at any time thereafter until 2011, at age 83 and 44 years after separation from service. The examiner found no nexus and opined that the condition was less likely than not due to service. Thus, the preponderance of the evidence is against a finding of service connection for Parkinsonism on a direct basis. Herbicide exposure Regarding service connection due to Agent Orange exposure, VA laws and regulations provide that if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.309 (e). Such diseases include, among others, Parkinsonism. 38 C.F.R. § 3.309 (e); see also Pub.L. 116-283; 38 U.S.C. § 1116 (a)(2). In this case, while the medical evidence of record reflects that the Veteran has Parkinsonism, as will be discussed in detailed below, the evidence of record does not establish that the Veteran was exposed to herbicides during his period of active service. A Veteran who served in the Republic of Vietnam or other locations, if the conditions of service involved duty or visitation in Vietnam or its territorial waters, between January 9, 1962, and May 7, 1975, is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). On January 29, 2019, the Federal Circuit Court issued an en banc decision in Procopio v. Wilkie which held that the phrase “service in the Republic of Vietnam” in 38 U.S.C. § 1116 includes the territorial sea of the Republic ... and is not limited to the landmass or inland waterways of that nation,” essentially reversing Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008). Procopio v. Wilkie, 913 F.3d 1370 (Fed. Cir. 2019). Congress implemented the Procopio holding in the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act). 38 U.S.C. § 1116, the statute pertaining to the presumption of in-service herbicide exposure was revised pursuant to P.L. 116-23, § 3(a), 133 Stat. 969 (added June 25, 2019). Effective January 1, 2020, 38 U.S.C. § 1116A was added to extend the presumption of in-service herbicide exposure to Blue Water navy veterans who served within 12 nautical miles off-shore of the Republic of Vietnam between January 9, 1962 and May 7, 1975. 38 U.S.C. § 1116A, states that VA must treat a location as being “offshore” of Vietnam (and therefore falling within the presumption of herbicide agent exposure) “if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia.” Thus, the presumption of herbicide exposure now extends to “Blue Water” Navy veterans who served aboard a ship that navigated within a 12 nautical mile radius off the coast of Vietnam. The Veteran’s DD Form 214s reflects that he served in the United States Navy aboard the USS Franklin D. Roosevelt, and he had 11 months and 14 days of foreign and/or sea service for his period of service from October 1960 to August 1966, and 7 months and 23 days of foreign and/or sea service for his period of service from August 1966 to April 1967; he is in receipt of the Vietnam Service Medical and Republic of Vietnam Campaign Medal. 06/13/2017 Certificate of Release or Discharge From Active Duty; 06/20/2018 Certificate of Release or Discharge From Active Duty at 4. The receipt of such medals does not denote service in the country of the Republic of Vietnam. In a September 2020 statement, the Veteran asserts that he served aboard the USS FD Roosevelt from August 1965 to April 1967, which deployed on the offshore “blue waters” of the Republic of Vietnam and were specifically offshore of Vietnam from September 1965 to January 1967. 09/11/2020 Correspondence. The Veteran’s service personnel records and deck logs associated with the claims folder do not document any port call or docking of the USS FD Roosevelt in the Republic of Vietnam or within 12 nautical miles off the coast of the Republic of Vietnam. Blue Water Navy Ship Locator Dashboards reflect that for the period from September 6, 1965 to April 3, 1967, the USS FD Roosevelt was not within 12 nautical miles off the coast of Vietnam nor in “blue waters.” 05/22/2020 Logbooks. Deck Logs from the USS FD Roosevelt also do not contain documentation that the ship was within 12 nautical miles off the coast of Vietnam or in the “blue waters.” For example, while the deck logs reflect that the USS FD Roosevelt was in Subic Bay, Yankee Station, the South China Sea, and the Philippine Islands for periods from August to December 1966, these locations are not within 12 nautical miles off the coast of Vietnam. The deck logs of the USS FD Roosevelt do not document that the ship traveled in “blue waters” nor docked or anchored in the Republic of Vietnam or within 12 nautical miles off the coast of Vietnam. Based on the documentation of record, the preponderance of the evidence is against a finding that the USS FD Roosevelt operated within 12 miles of the Vietnam Coast; and, the liberalized law of the Blue Water Act does not aid the Veteran in his appeal. Hence, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents via his service aboard the USS FD Roosevelt. The Board also acknowledges the Veteran’s receipt of a Citation for outstanding achievement in the superior performance of his duties while serving as Chief Petty Officer in charge of the Electrical Rewind Shop aboard the USS FD Roosevelt from August 10 to December 27, 1966. He displayed great bravery and determination when on November 4, 1966 a major fire occurred in a flammable materials storeroom claiming the lives of eight of his shipmates and causing considerable damage. The Veteran aided the fire fighting party in limiting the destruction of the fire and displayed outstanding professional ability by rapidly effecting the electrical repair to the damaged compartments returning them to normal use in a short period of time thus maintaining the ship’s material readiness. 04/29/2016 Military Personnel Record. The Veteran submitted a statement pertaining to this incident suggesting that the contents of the fire could have been Agent Orange. 04/29/2016 VA 21-4138 Statement in Support of Claim. A May 2009 Memorandum for Record from the Department of the Army, U.S. Army & Joint Services Records Research Center (JSRRC) states that the JSRRC has reviewed numerous official military documents, ship histories, deck logs, and other sources of information related to the Navy and Coast Guard ships and the use of tactical herbicide agents, such as Agent Orange, during the Vietnam era, and the JSRRC has found no evidence that indicates Navy or Coast Guard ships transported tactical herbicides from the U.S. to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. Additionally, the JSRRC could not document or verify that a shipboard Veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment that was used in Vietnam. Thus, the JSRRC could provide no evidence to support a Veteran’s claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. 06/06/2016 VA Memo. There is otherwise no supporting documentation which shows that tactical herbicides were transported, used or stored aboard the USS FD Roosevelt. Hence, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to herbicide agents via the USS FD Roosevelt. Radiation exposure Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by several different methods. First, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed veterans. 38 U.S.C. § 1112 (c); 38 C.F.R. § 3.309 (d). Second, when a “radiogenic disease” first becomes manifest after service, and it is contended that the disease resulted from exposure to ionizing radiation during service, various development procedures must be undertaken in order to establish whether or not the disease developed as a result of exposure to ionizing radiation. 38 C.F.R. § 3.311 (a)(1). Third, even if the claimed disability is not listed as a presumptive disease under 38 C.F.R. § 3.309 (d) or as a radiogenic disease under 38 C.F.R. § 3.311, service connection must still be considered under 38 C.F.R. § 3.303 (d) in order to determine whether the disease diagnosed after discharge was incurred during active service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A “radiation-exposed veteran” is defined as either a veteran who while serving on active duty, or an individual who while serving on active duty for training or inactive duty training, participated in a radiation-risk activity. 38 C.F.R. § 3.309 (d)(3)(i). “Radiation-risk activity” is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan, or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945, through July 1, 1946. 38 C.F.R. § 3.309 (d)(3)(ii). Diseases specific to radiation-exposed veterans for the purpose of presumptive service connection are listed at 38 C.F.R. § 3.309 (d)(2)(i)-(xxi). The Veteran’s Parkinsonism is not identified as a disease for which the presumption of service connection applies, and section 3.309(d) is not for application in this case. As to the second method for establishing service connection, the provisions of 38 C.F.R. § 3.311 provide for development of claims based upon a contention of radiation exposure during active service and post-service development of a radiogenic disease. The purpose of these provisions is to relieve claimants of the burden of having to submit evidence to show that their disease may have been induced by radiation. These provisions do not give rise to a presumption of service connection, but rather establish a procedure for handling claims brought by radiation exposed veterans or their survivors. See Ramey v. Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997). The governing regulation essentially states that, in all claims in which it is established that a radiogenic disease first became manifest after service, and it is contended that the disease resulted from radiation exposure, a dose assessment will be made. Dose data will be requested from the Department of Defense in claims based upon participation in atmospheric nuclear testing, and claims based upon participation in the American occupation of Hiroshima or Nagasaki, Japan, prior to July 1, 1946. 38 C.F.R. § 3.311 (a)(2). In all other claims involving radiation exposure, a request will be made for any available records concerning the veteran's exposure to radiation. These records normally include but may not be limited to the veteran’s Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service treatment records, and other records which may contain information pertaining to the veteran’s radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. For purposes of 38 C.F.R. § 3.311, a “radiogenic disease” is defined as a disease that may be induced by ionizing radiation and are listed at 38 C.F.R. § 3.311 (b)(2)(i)-(xxiv), (b)(5)(iv). Parkinsonism is not on that list. With regard to radiation exposure, the Veteran asserts that he was exposed to radiation while serving at the United States Naval Base, Kwajalein, Marshall Island, and claims participation in atomic bomb testing of Operation IVY. The Veteran’s service personnel records reflect that he served on the Marshall Islands from July 1950 to September 1951. 07/13/2016 Military Personnel Record. He asserts that while serving on the Marshall Islands, they took trash out from the islands out to sea to dump, ate fish, and showered. He asserts that the fish showed minor radiation. 07/13/2016 VA 21-4138 Statement in Support of Claim. He also asserts that while serving at the Fleet Training Center in South Carolina he used radioactive materials for training. Id. Correspondence was issued to the Naval Dosimetry Center in May 2018, which requested verification of the Veteran’s exposure to radiation while stationed at the Fleet Training Center in South Carolina from September 1966 to April 1967. In June 2018, the Department of the Navy, Naval Dosimetry Center, responded that the Veteran was exposed to shallow dose equivalent (SDE) whole body (WB) radiation from January 1, 1964 to May 31, 1965 with a dose (REM) of 00.000. 06/11/2018 Third Party Correspondence. Correspondence was issued to the Defense Threat Reduction Agency (DTRA) in July 2018 which requested verification of the Veteran’s participation in a radiation risk activity. A response from the DTRA reflects that the government conducted Operations GREENHOUSE and IVY at the Pacific Proving Ground from April 8 to June 20, 1951, and November 1 to December 31, 1952, respectively. The government did not conduct atmospheric nuclear testing during 1950. The Veteran’s unit records indicate that as of April 8, 1951, he was assigned duty at NS Kwajalein and transferred to Service Craft, 14th Naval District, Unit 3, NS Kwajalein, on May 8. He embarked aboard USNS Fred C. Ainsworth (T-AP 181) on August 4 at Kwajalein, departed two days later for transportation to Hawaii, arrived at Honolulu on August 11, and jointed Service Craft, 14th Naval District, Unit 1, U.S. Naval Base, Pearl Harbor, later that day. Apart from assignments to temporary additional duty at NS Kwajalein from December 6, 1951 to January 10, 1952, and at U.S. Naval School (Harbor Defense), NS Treasure Island, San Francisco, California, from June 2 to August 1, 1952, he remained with the unit at Pearl Harbor through June 30, 1953. Personnel assigned to Kwajalein during Operation GREENHOUSE are considered participants only when there is documentation indicating they were present on Kwajalein specifically in direct support of the operation or if they were issued a film badge. There is no documentation in the Veteran’s records indicating that he served at Kwajalein in support of Operation GREENHOUSE. Additionally, after a search of available dosimetry data, there was no record of radiation exposure for the Veteran. Thus, it was concluded that there are no historical records of the Veteran’s participation in U.S. atmospheric nuclear testing. Also, a review of Census Report, Volume 1, 1962 through 1966 indicated no participation in U.S. underground nuclear weapons tests for the Veteran. 01/03/2019 Third Party Correspondence. Based on the Veteran’s possible exposure to radiation while serving at the Marshall Islands and Fleet Training Center, an opinion was sought as to whether the Veteran’s Parkinsonism was due to any in-service exposure to radiation. In December 2020, a C&P examiner reviewed the claims folder, noting that the cardinal features of Parkinsonism are tremor, bradykinesia, and rigidity. A fourth feature, postural instability, is commonly mentioned, although it does not generally occur until much later in the course of the disease. Per records, the Veteran started developing a left hand tremor in 2011, at age 83, isolated, and it was not until 2015 that he developed more symptoms. Per UTD “Parkinson disease is a progressive neurodegenerative that affects between 100 and 200 per 100,000 people over 40. The incidence of the disease increases rapidly over 60 years, with a mean age at diagnosis of 70.5 years.” While the cause of Parkinson’s disease is still unknown, remarkable advances have been made in understanding the possible underlying mechanisms (1) Depigmentation, neuronal loss, and gliosis, particularly in the substantia nigra pars compacta (SNc) and in the pontine locus ceruleus, are typical abnormalities found in the brains of patients with Parkinson’s disease. Irrespective of the initial trigger (etiology) of the neuronal degeneration in Parkinson’s disease, the pathogenesis of neurodegeneration probably involves either programmed cell death (apoptosis) or necrosis. There is consistent evidence that older age and a family history of Parkinson’s disease are important risk factors for developing Parkinson’s disease. This Veteran was exposed to radiation during bomb testing in the Marshalls Islands in the 1950s, and also during fleet training with radioactive material between 1962 and 1965, as documented in records. After extensive research of the EBML, the examiner was not able to find any associative or causative relationship between ionizing radiation and the development of Parkinson’s disease. This December 2020 opinion is probative as it was based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran’s testimony that Dr. L. related his Parkinsonism to radiation exposure. 03/19/2018 Hearing Testimony at 6-7. Records from Dr. L have been associated with the claims folder, but such records do not contain any discussion or opinion pertaining to the etiology of his Parkinsonism nor any discussion of exposure to radiation. See 02/14/2019 Medical Treatment Record-Non-Government Facility. Thus, the Veteran’s statement as to what he believes Dr. L told him cannot provide the basis for establishing service connection for Parkinsonism as due to asbestos exposure. Based on the above, the Board finds that the preponderance of the evidence is against a finding that the Parkinsonism is due to any in-service radiation exposure. Asbestos exposure At the March 2018 RO hearing, the Veteran testified that he was exposed to asbestos while serving aboard the USS Missouri, USS Pinnacle, and USS FD Roosevelt. 03/19/2018 Hearing Testimony at 5-6. The Veteran also testified that Dr. L. related his Parkinsonism to asbestos exposure. Id. at 6-7. There are no statutes specifically dealing with asbestos and service connection for asbestos related diseases and the Secretary of VA has not promulgated any specific regulations. However, in 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, asbestos-related diseases (May 11, 1988). The information and instructions contained in the DVB Circular are included in VBA’s Adjudication Procedures Manual, M21-1, IV.ii.2.C.2. In addition, an opinion by VA’s Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-2000. VA has acknowledged that a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. See M21-1, IV.ii.2.C.2.f. When considering VA compensation claims, rating boards have the responsibility of ascertaining whether or not military records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to ascertain whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. A determination must then be made as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information noted above. M21-1, IV.ii.2.C.2.h. The Manual notes that asbestos particles have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce plural effusion and fibrosis, pleural plaque, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual also notes that lung cancer associated with asbestos exposure originates in the lung parenchyma, rather than the bronchi. M21-1, IV.ii.2.C.2.b. Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch products and brake linings, manufacture and insulation of roofing and flooring materials, sheet and pipe products, and so forth. High exposure to asbestos and the high prevalence of disease have been noted in insulation and shipyard workers. The clinical diagnosis of asbestosis requires a history of asbestos exposure and radiographic evidence of parenchymal lung disease. M21-1, IV.ii.2.C.2.g. The Board notes that the pertinent parts of the M21-1 guidelines of service connection in asbestos-related cases are not substantive rules, and there is no presumption that a Veteran was exposed to asbestos in-service. Records from Dr. L have been associated with the claims folder but such records do not contain any discussion or opinion pertaining to the etiology of his Parkinsonism nor any discussion of exposure to asbestos. See 02/14/2019 Medical Treatment Record-Non-Government Facility. While the Veteran may have been exposed to asbestos during service, the medical evidence of record does not reflect that Parkinsonism is an asbestos related disability nor that his Parkinsonism is due to any asbestos exposure. The Veteran’s statement as to what he believes Dr. L told him cannot provide the basis for establishing service connection for Parkinsonism as due to asbestos exposure, nor is it sufficiently probative to trigger the need to obtain a medical opinion. Thus, the evidence of record does not support a relationship between Parkinsonism and any in-service asbestos exposure. As detailed above, the Board has given consideration to the contentions of the Veteran, and based on such contentions further development was obtained with regard to whether his service aboard the USS FD Roosevelt involved exposure to herbicides; further development was obtained with regard to his claimed radiation exposure; and, an opinion was sought regarding a relationship between Parkinsonism and radiation exposure which was negative. Unfortunately, the Veteran does not have the requisite medical expertise to find that his current Parkinsonism is due to service, to include any in-service exposures. His opinion in this regard is not competent, given the complexity of the medical question involved. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (recognizing that orthopedic ACL tear is too medically complex for lay evidence to competent to diagnose); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer). Again, based on the Veteran’s contentions and his in-service experiences, an opinion was sought regarding his radiation exposure, and the opinion was negative based on review of the entire evidence of record. (Continued on the next page)   In conclusion, the most probative, competent evidence is against a link between Parkinsonism and service. Because the preponderance of the evidence is against the issue, reasonable doubt does not arise, and service connection is denied. See 38 U.S.C. § 5107(b). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.