Citation Nr: 19127093 Decision Date: 04/08/19 Archive Date: 04/08/19 DOCKET NO. 18-06 287 DATE: April 8, 2019 ORDER Entitlement to service connection for Parkinson's disease is denied. FINDINGS OF FACT 1. The Veteran is not presumed to have been exposed to an herbicide agent during active service and actual exposure is not demonstrated. 2. The preponderance of the evidence is against finding that the Veteran’s Parkinson’s disease was incurred in service or is otherwise related to service, to include as due to herbicide agent exposure. CONCLUSION OF LAW The criteria for service connection for Parkinson’s disease have not been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1968 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2017, the Veteran testified before a Decision Review Officer (DRO). A transcript is of record. 1. Entitlement to service connection for Parkinson's disease The Veteran seeks service connection for Parkinson’s disease. He asserts that he was exposed to herbicide agents while undergoing land survival training at Eglin Air Force Base (AFB) during spring 1969, and that such exposure caused his disease. See, e.g., April 2013 VA treatment records; see also September 2011 Statement in Support of Claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodyl acid, and picloram. 38 C.F.R. § 3.307 (a)(6)(i). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean demilitarized zone (DMZ) between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. For those veterans who have been exposed to herbicide agents, certain enumerated diseases including Parkinson’s disease, are presumptively related to such exposure. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e). The Veteran has a current diagnosis of Parkinson’s disease. Thus, question before the Board is whether the Veteran was exposed to an herbicide agent in service, and if so, whether his disease is related to such exposure. The Veteran has not asserted, nor does the evidence suggest, other theories of etiology other than herbicide exposure. As a preliminary matter, the Board notes that the Veteran has not asserted and the evidence of record does not indicate, that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; or, in a unit near the Korean demilitarized zone between April 1, 1968, and August 31, 1971; or, in the Air Force or Air Force Reserve under circumstances which concerned regularly and repeatedly operating, maintaining, or serving onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Accordingly, in-service exposure to an herbicide agent cannot be presumed. See 38 C.F.R. §§ 3.307(a)(6); 3.309(e). The Veteran is not precluded from proving actual exposure though. See Combee v. Brown, 5 Vet. App. 248 (1993); 38 C.F.R. § 3.303 (d). The preponderance of the evidence is, however, against finding in-service exposure to herbicide agents. The Veteran asserts that he was exposed to an herbicide agent in spring of 1969 when he was stationed at the naval air station in Pensacola, Florida for Naval Aviation Office School and Navy Pilot Training. He reports that he was sent to Eglin AFB for land survivor school during this time. He reports being instructed to live off the land and hide from the enemy, which was difficult ‘because vegetation was very thin or sparse in some areas.’ The Veteran also specified in a September 2011 VA Form 21-4138, that Eglin AFB was one of the few locations in the United States where Agent Orange was stored, tested, and sprayed; that this procedure contaminated the water, soil, animals, and personnel in the area; and that seven years of spraying had accumulated in the area due to wind, water, erosion, and animal movement by the time he served. He later indicated that an Air Force study showed that Eglin AFB received at least 1300 times more dioxin per hectare than a hectare in Vietnam. The Veteran’s military personnel records do not support his report of land survivor training at Eglin AFB in spring 1969. The Veteran’s military personnel records indicate he was stationed in Pensacola, Florida from October 1968 to May 1969 and participated in Naval Aviation Schools’ Command Flight systems training from February 1969 to March 1969. His service treatment records indicate he underwent night vision and altitude training in March 1969 in Pensacola. The Veteran’s Report on the Fitness of Officers for the period of report ranging from February 1969 to May 1969 indicates he underwent basic air and ground training of naval aviators and aviation officers but notes his station as U.S. Naval Air Station, Pensacola, Florida. In short, military personnel records do not reflect the Veteran underwent land survivor training at Eglin AFB during the time reported. The Veteran is competent to relate the locations at which he served because he has first-hand knowledge of this lay information. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran’s statements have also been consistent throughout the claim process and there is, generally, nothing of record reflecting that he is of bad character; thus, the Board views the Veteran as credible. However, in weighing the evidence related to service at Eglin AFB, the Board finds that the Veteran’s statements in that regard are insufficient to show that he served there. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (credibility of a witness is not the same as the probative value of his or her statements). The Board acknowledges that the Veteran has been consistent in his assertion that he served at Eglin AFB and that it is facially plausible that he may have traveled there. These factors weigh in his favor. On the other hand, his service records show that he completed training at another location, U.S. Naval Air Station, Pensacola, Florida. These records do not refer to Elgin AFB, provide any indication that the training may have been split between U.S. Naval Air Station and Elgin AFB, or that the Veteran was ever required to travel to Elgin AFB. The Board is cognizant the Veteran submitted a news article that indicates Navy flight students at the Pensacola Naval Air Station were brought to different sites on Eglin Air Force Base Reservation for land survival training. The Board notes that the article indicates that such training occurred in the 1960s. See Barbara T. Dreyfuss, Air Force Admits Agent Orange Spraying in Florida in 1962-70, Veterans Today, Mar. 9, 2009. The Board also notes the article corroborates the Veteran’s lay statements regarding training at Eglin AFB. Nonetheless, even if the Board were to concede the Veteran underwent training at Eglin AFB as asserted, the preponderance of the evidence is against finding that the Veteran was exposed to herbicide agents there. In March 2018, VA issued a formal finding that it lacked the information the U.S. Army and Joint Services Records Research Center (JSRRC) requires to verify herbicide agent exposure at Eglin Air Force Base. The Board acknowledges that the formal finding confirms that Agent Orange was used during the period the Veteran asserts he was training at Eglin AFB. However, the Board notes the report indicates that use of the herbicide was controlled. The formal findings make clear that Agent Orange was not used in populated areas. As such, the formal finding counters the Veteran’s assertion that the toxin was sprayed into the environment, ground, or water at Eglin AFB where personnel were located. The Board acknowledges the Veteran’s reports that vegetation was very thin or sparse in some areas where he trained; however, the notion that his seeing sparse crops establishes that he was exposed to an area where Agent Orange was used is outweighed by the findings that the toxin was used in controlled environments accessed only by specific personnel. The Veteran submitted a portion of a case in which service connection was established based on a finding that another veteran was exposed to herbicide agents while serving at Eglin AFB in 1963. The Board notes, however, that this outcome was predicated on a different set of facts (i.e. that veteran contended he mistakenly entered a restricted area where herbicide agent spraying was occurring and the resulting finding that the veteran was exposed to the controlled areas where herbicide agent testing was conducted on Eglin AFB). The Board notes that the Veteran has not asserted the same in this case, nor has he provided any competent evidence that he was exposed to the controlled areas where herbicide agent testing was conducted. Moreover, prior Board decisions are not precedential. In weighing the evidence of record, the Board finds the March 2018 formal finding report highly probative, especially as it comes from a source that is competent to report on the nature and substance of toxic herbicides. The report acknowledges that herbicide agents were used during the period the Veteran asserts he was at Eglin AFB but explains why the Veteran could not have been exposed to the toxin. The report directly corresponds to the time the Veteran has indicated that he was exposed, specifically March 1969. The findings are also based on research and documentation pertaining specifically to the Veteran’s contentions and to the parameters within which herbicide agents were used at Eglin AFB. The Board acknowledges the Veteran’s reports of how much dioxin was used at Eglin AFB but finds the quantity is not relevant as the evidence of record indicates that herbicide agents nor their components were used in the populated areas at Eglin AFB, and, as discussed, the Veteran has not established that he was in the controlled areas where the toxins were used. Given the more probative official documentation of herbicide agent use at Eglin AFB, the Board determines that the Veteran’s in-service exposure to herbicide agents cannot be established. Finally, with respect to his assertion that planes overhead sprayed an herbicide agent that landed on him, the Veteran has not provided any evidence to show that he is competent to identify what substance was being sprayed. As in-service exposure to herbicide agents has not been established, service connection is not warranted. As noted, the Veteran also has not indicated how his Parkinson’s disease is otherwise related to his active service. Nor does the record suggest an in-service event or injury relating to his Parkinson’s disease. The Veteran’s available service treatment records are silent for any complaints, treatment or diagnoses relating to Parkinson’s disease. As the evidence does not indicate that Parkinson’s disease may be associated with an established event, injury, or disease in service, VA does not have a duty to assist the Veteran in substantiating his claim by providing an examination. 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (explaining that something more than an appellant’s conclusory, generalized statement is needed to trigger VA’s duty to assist by providing a medical examination). Accordingly, the preponderance of the evidence is against finding that the Veteran’s Parkinson’s disease was incurred in or is otherwise related to his active service. There is no doubt to be resolved; service connection for Parkinson’s disease is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Aoughsten, Associate Counsel