Citation Nr: A22011016 Decision Date: 06/13/22 Archive Date: 06/13/22 DOCKET NO. 211109-196456 DATE: June 13, 2022 ORDER Entitlement to service connection for Parkinson's disease is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran was exposed to herbicide agents (including Agent Orange) in Korea. 2. The Veteran has been diagnosed with Parkinson's disease. CONCLUSION OF LAW The criteria for service connection for Parkinson's disease are met. 38 U.S.C. §§ 1110, 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 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) from an August 2021 rating decision. The Veteran timely appealed the August 2021 rating decision to the Board in November 2021 and requested the Board's hearing docket. In February 2022, the Veteran withdrew his request for a Board hearing. Therefore, the Board may only consider the evidence of record as of the date of the August 2021 rating decision, and any additional evidence received with the 90 days following the February 7, 2022 receipt of the Veteran's hearing withdrawal. 38 C.F.R. § 20.302 (b). Entitlement to service connection for Parkinson's disease Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including Parkinson's disease, shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). In addition to exposure within the Republic of Vietnam, exposure to herbicide agents (including Agent Orange) has been noted to have occurred in various places outside of the Republic of Vietnam, including Korea. There is a limited presumption of exposure to herbicide agents for veterans who served in Korea near the Demilitarized Zone (DMZ) during the period beginning on September 1, 1967 and ending on August 31, 1971. Prior to January 1, 2020, the presumption of in-service herbicide agent exposure in Korea was limited to certain veterans who served in Korea as part of a unit that, as determined by the Department of Defense, operated near the Korean DMZ (in an area where herbicide agents were known to have been applied) between April 1, 1968 and August 31, 1971. 38 U.S.C. § 1116B; 38 C.F.R. § 3.307 (a)(6)(iv). However, the Blue Water Navy Vietnam Veterans Act, later codified at 38 U.S.C. § 1116B, extended the presumption of herbicide agent exposure to veterans who, during active military, naval, or air service, served in or near the Korean DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. See 38 U.S.C. § 1116B (effective January 1, 2020). Although entitlement to service connection on the presumptive basis noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). In this case, the Veteran contends that he was exposed to herbicide agents (including Agent Orange) while serving in Korea, and that he has Parkinson's disease which is related to his exposure. The Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran was exposed to herbicide agents (including Agent Orange) during service and that he has a current diagnosis of Parkinson's disease that is presumptively service-connected. In the August 2021 rating decision, the agency of original jurisdiction (AOJ) found that the Veteran had current Parkinson's disease which became manifest to a compensable degree in the years following service. The Board is bound by this favorable finding of the AOJ. 38 C.F.R. § 3.104 (c). Therefore, current Parkinson's disease is demonstrated. The remaining question is whether the Veteran was exposed to herbicide agents during service. In this regard, he contends that he was exposed to herbicide agents while stationed near the DMZ in Korea at Camp Casey. He has reported that herbicide agents were used at various locations on the base (to include along the base perimeter where he performed guard duty and in the vicinity of the maximum security area (MSA) of the base where his office was located). Moreover, he has reported that he traveled to the north of Camp Casey and closer to the DMZ (where herbicide agents were known to have been applied) supervising training with Korean nationals. Service personnel records confirm that the Veteran served in Korea from April 1969 to June 1970 (i.e., during the period which herbicide agents were used in Korea) and was stationed at Camp Casey. In October 2016, the former U.S. Army & Joint Services Records Research Center (now known as the U.S. Department of Army, Records Management and Declassification Agency) reviewed the 1969 records of the Veteran's unit and indicated that although the unit was located at Camp Casey, the records did not document the use, storage, spraying, or transportation of tactical herbicides, to include Agent Orange. In addition, the records did not document any specific duties performed by members of the Veteran's unit along the DMZ. In support of his contentions, the Veteran submitted military documents which indicate that defoliant applications were to be made only in the area north of the civilian control line and south of the southern boundary of the DMZ. Although the first priority area of application was a 100-meter strip on each side of the DMZ Security Fence System, it was to also be applied in other tactically significant areas, to include tactically significant roads in the forward areas. The Veteran also submitted photographs of various areas at Camp Casey (including along the base perimeter), which reveal that the areas appear to be defoliated. The Veteran also submitted lay statements concerning the location of Camp Casey and the presence of herbicide agents at the camp. In a May 1996 letter sent from the Department of the Army to Senator Glenn, it was indicated that historical maps verified that Camp Casey was located "in the area of the DMZ in Korea." In a June 2004 statement, former service member S.W. reported that his unit was responsible for the application of herbicide agents in Korea and that the perimeter of Camp Casey and the mess hall area were treated with herbicide agents. Also, in a July 2018 statement, a fellow service member of the Veteran (R.W.) reported that the Veteran was stationed at Camp Casey from April 1969 to June 1970, and that he was located at the back of the camp, right across the road from the MSA where R.W. was stationed as a tower guard. At the back of the camp there were bunkers holding weapons and other sensitive materials. There was a triple fence system and tower guards to keep North Koreans out of the area, and Agent Orange was sprayed in the area so that they could see any North Koreans approaching the camp. Overall, R.W. felt that there was "no doubt that [the Veteran] was exposed to Agent Orange." Moreover, the Veteran submitted a copy of a May 2019 Board decision which explains that it was "undisputed that Camp Casey was the installation closest to the Korean DMZ." Although the Board is not bound by another veteran's Board decision, it is at least persuasive. The Veteran is competent to report serving in areas of Camp Casey that were defoliated by herbicide agents and traveling further North of the camp closer to the DMZ, and S.W. and R.W. are competent to report the spraying of herbicide agents at Camp Casey and the Veteran's presence in affected areas of the camp. Also, there is no affirmative evidence to explicitly contradict these reports and the reports are consistent with the places, types, and circumstances of the Veteran's service. See 38 C.F.R. § 3.303 (a). Moreover, the Board must consider the Veteran's statements along with the other evidence of record in determining whether he was exposed to herbicide agents in Korea. Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 176 (2016) (the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was exposure to herbicide agents in Vietnam or elsewhere). The Board acknowledges that it previously found that the Veteran was not exposed to herbicide agents in Korea in an April 2021 Board decision which addressed different service connection matters on appeal. In an October 2021 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) set aside the April 2021 Board decision and explained that the Board did not adequately consider the Veteran's lay statements and pictures to determine whether he was directly exposed to herbicide agents at Camp Casey and/or when traveling further north of the camp towards the DMZ. Upon further consideration of this evidence and in light of the other evidence set forth above, the Board now finds that the evidence is at least evenly balanced as to whether the Veteran was exposed to herbicide agents in Korea. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, his exposure to herbicide agents in service (including Agent Orange) is conceded. Moreover, as the Veteran has current Parkinson's disease, and was exposed to herbicide agents in Korea, service connection for Parkinson's disease is warranted on a presumptive basis. Jonathan Hager Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.