Citation Nr: 21031968 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-32 820 DATE: May 25, 2021 ORDER Service connection for Parkinson's disease is denied. FINDING OF FACT The preponderance of the evidence is against a finding that Parkinson's disease began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for Parkinson's disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Navy from August 1959 to June 1963. He died in 2017, and the appellant, who is his widow, has been substituted in his place to pursue his claims. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Board remanded this matter for further development. The Veteran and Appellant testified at an August 2016 videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript is of record. In April 2021, the Board sent the Appellant a letter presenting her with an opportunity for another hearing; however, she has not requested another hearing. 1. Service connection for Parkinson's disease is denied. Service connection may be granted 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. To establish service connection for a disability, a Veteran must show: (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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran and Appellant contend that the Veteran's Parkinson's disease was due to exposure to herbicide agents, radiation, mustard gas, or CN gas. In the alternative, they also contend that in-service foot and leg problems was an early onset sign of Parkinson's disease. For the following reasons, the Board finds that service connection is not warranted. The Veteran had a diagnosis of Parkinson's disease. This meets the first element of service connection. 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. Parkinson's disease is included as a disease where service connection is presumed. For the purpose of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operation 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. Exposure to herbicide agents is presumed for a veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's service records do not indicate that he served in the Republic of Vietnam. As such, he cannot be presumed to be exposed to herbicide agents. In a July 2011 statement, the Veteran contended that while aboard the USS Monticello he was in the waters of Vietnam, docked in Vietnam, and went ashore. A Defense Personnel Records Information Retrieval System (DPRIS) request found that the USS Monticello did not conduct operations in the contiguous waters of Vietnam and deck logs do not document that the ship docked, or personnel set foot in Vietnam. The claims file includes a June 2010 letter from the Navy that includes a list of Navy ships that served off the coast of Vietnam from 1962 to 1975. The USS Monticello is included on that list, but dates are not provided when the ship was off the coast of Vietnam. The Board finds that a preponderance of the evidence shows that the Veteran was not in Vietnam or in the waters of Vietnam. As such, exposure to herbicide agents will not be presumed. Exposure to herbicide agents can be established on a facts-found basis. The Veteran and Appellant also contend that the Veteran was exposed to herbicide agents when he was in contact with service-members returning from service in Vietnam. The Veteran has provided no evidence to support this contention. As such, the Board does not find this theory persuasive in supporting a finding that the Veteran was exposed to herbicide agents. The Veteran and Appellant additionally contend that the Veteran was exposed to herbicide agents during his service in Okinawa. In support of this contention, the Veteran and Appellant have submitted multiple news articles of other Veterans being granted service connection due to exposure to herbicide agents in Okinawa, dioxin being found at U.S. Army's Machinato Service Area in Okinawa in the 1970s, and dioxin barrels found in Okinawa in 2014. Though these articles are persuasive in showing that dioxin and herbicide agents may have been present in Okinawa, they do not support the contention that they were used when the Veteran was present. The articles do not indicate when, or even if the dioxin chemicals were used at Okinawa. Without this evidence, the Board cannot make a finding that herbicide agents were used, and the Veteran was exposed to them during his service in Okinawa. The Veteran and Appellant also submitted a Board decision that granted service connection due to exposure to herbicide agents in Okinawa. Board decisions are not precedential and binding before the Board. The Board finds the facts in the Veteran's claim to not be analogous to those in the decision submitted as evidence. In the other case, the veteran was in Okinawa from January 1967 to January 1968, and submitted evidence from the U.S. Air Force regarding use of herbicides and other chemicals in Okinawa. The veteran also testified that he had transported barrels of Agent Orange and submitted photographs of the vehicles he used to transport the barrels. The Veteran has submitted no photographs or statements from other servicemembers to corroborate his statements and testimony that herbicide agents were used at Okinawa. Without additional evidence to support his contentions, the Board cannot make a finding that the Veteran was exposed to herbicide agents in Okinawa. VA attempted to verify the Veteran's contention that he was exposed to herbicide agents in Okinawa, Japan. The Department of Defense has provided VA with a listing of locations outside Vietnam and the Korean DMZ where tactical herbicides, such as Agent Orange, were used, tested, or stored. The list does not show any use, testing, or storage of tactical herbicides at Camp Sukuran or Camp Hansen, Okinawa, Japan. The Board finds this evidence to support a finding that the Veteran was not exposed to herbicide agents. The Veteran also contends he was exposed to herbicide agents when loading munitions on ships in Naha, Japan. He and the Appellant were given an opportunity to provide information regarding his alleged exposure so VA could verify it, but no information was provided. Without this information that Board cannot finds that the Veteran was exposed to herbicide agents when loading munition in Naha, Japan. The only evidence to support the Veteran's contention that he was exposed to herbicide agents in Okinawa is his own testimony and statements. However, the Board cannot find the Veteran's testimony to be credible as he has not been a reliable historian. The Veteran has stated multiple times that he was in the waters of the Republic of Vietnam while aboard the USS Monticello and that he even went ashore when the ship was docked in Vietnam. As explained above, DPRIS records show that the USS Monticello was never in the waters of the Republic of Vietnam and never docked in Vietnam during the time the Veteran was stationed aboard the USS Monticello. The Veteran also testified that he had only been aboard the USS Monticello, but in a July 2015 letter to the National Personal Records Center the Veteran stated that he was aboard the USS Bexar during the Cuba crisis. The Veteran's inconsistencies regarding his assignment history shows that he was not a reliable historian and as such the Board cannot find his statements regarding the circumstances of his service to be credible. Moreover, the Veteran was not competent to identify the substances that were on the clothing or bodies of service members returning from Vietnam, or that were reportedly present in Okinawa or Naja, because such a finding requires special training and expertise that he did not have. His assertions indicating exposure to gas or chemicals during service are not considered to be sufficient evidence, on their own, to establish actual exposure, absent evidence that the veteran may have some specialized expertise or training in identifying such substances. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Veteran and Appellant also contend that the Veteran's Parkinson's disease is due to radiation exposure. Service connection for a disability that is claimed to be attributable to ionizing radiation exposure during service can be accomplished in three different ways. First, there are certain types of cancer that are presumptively service connected, specific to radiation-exposed Veterans. 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). Here, the first two methods are inapplicable. The disability adjudicated herein is not among those presumed to be associated with ionizing radiation exposure. 38 C.F.R. § 3.309(d). Similarly, it is not are listed as a "radiogenic disease" under 38 C.F.R. § 3.311. As such, no further discussion of the provisions of either 38 C.F.R. § 3.309(d) or § 3.311 is indicated. As for direct service connection based on exposure to ionizing radiation, the Veteran contends he was exposed to radiation while at Camp Pendleton. At his hearing, he and the Appellant testified that the Veteran and a fellow service member handled radioactive material as part of their duties. As explained above, the Board has found the Veteran to be an unreliable historian, and does not find his testimony about radiation exposure to be credible. The Appellant's testimony about how the Veteran was exposed to radiation comes from information that he relayed to her. As the Board has found the Veteran to be an unreliable historian, the Board cannot credit testimony from the Appellant that is based on the Veteran's own recollection. The Veteran testified that he had a letter from a fellow servicemember to corroborate his contention. However, this letter has not been submitted. Additionally, the Veteran was not competent to determine that he was exposed to ionizing radiation as he did not demonstrate any specialized training or experience in this regard. Therefore, his statements alone are insufficient to establish exposure to ionizing radiation during military service. See, e.g., Bardwell, 24 Vet. App. at 40. For these reasons, the Board cannot find that the Veteran was exposed to radiation. VA though has tried to verify the Veteran's contention that he was exposed to radiation during his active duty service. In a January 2018 letter, the U.S. Navy responded to a request regarding the Veteran's occupational exposure to ionizing radiation. The Navy found that a review of the exposure registry by name, service number, command, and social security number revealed no reports of occupational exposure to ionizing radiation pertaining to the Veteran. The Board finds this to support its finding that the Veteran was not exposed to radiation. The Veteran and Appellant also contend that an October 1961 incident when he dropped out of a five-mile forced march due to difficulty with his feet and legs was the first onset of Bradykinesia. A medical opinion was sought regarding the Veteran's contention. In a December 2018 opinion, a VA physician opined that it was less likely than not that the Veteran's difficulty with his feet and legs marked the onset of Parkinson's disease. The physician explained that Bradykinesia is a neurological sign in which movement becomes slow, progressing so that steps become shorter when walking, dressing can be slow, or getting up from a chair can be difficult. The physician also explained that when Bradykinesia is associated with Parkinson's disease the condition is progressive and not episodic. The physician is competent to provide this opinion, the Board finds them to be credible, and affords the opinion great probative weight. The Veteran and Appellant also contend that the Veteran's Parkinson's disease was due to exposure to mustard gas or CN gas while at Camp Pendleton. In a December 2018 opinion, a VA physician opined that it was less likely than not that the Veteran's Parkinson's disease was due to exposure to mustard gas or CN gas. The examiner explained that mustard gas and CN gas are not known to cause, contribute, or be a risk factor for Parkinson's disease. The examiner provided known effects of exposure to mustard gas and CN gas, and Parkinson's disease was not included in this list. The examiner is competent to provide this opinion, the Board finds them to be credible, and affords the opinion great probative weight. The Appellant contends that the medical opinions provided are not adequate because the Veteran was not examined and that the claim should be granted. Though in its November 2016 remand the Board did direct for the Veteran to be examined before an opinion would be provided, the Board finds that there was substantial compliance with its remand directive as the Veteran passed away before an examination was scheduled. The lack of the Veteran being examined does not render the opinions inadequate as the physician was provided with the Veteran's treatment records and claim file to provide an etiological opinion. As such, the Board finds the opinions to be adequate. Accordingly, the preponderance of the evidence is against a finding that the Veteran's Parkinson's disease began during active service, or is due to an in-service injury or disease. Because the preponderance of the evidence weighs against this claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As such, service connection for Parkinson's disease is denied. J. Smith Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.