PARKINSON'S DISEASE

Summary

The Veteran, an Air Force Veteran who served from October 1969 to July 1992, including a tour in Thailand at U-Tapao Royal Thai Naval Air Field from October 1972 to October 1973, appeals the denial of service connection for Parkinson's disease and associated tremors. The Veteran claimed herbicide exposure due to his proximity to the base perimeter and his duties near it. The Board found the Veteran's lay statements regarding his duties, combined with his officer evaluation reports detailing his managerial roles and activities near the base perimeter, to be competent, credible, and persuasive evidence of herbicide exposure. The Board noted VA policy acknowledges exposure for those near base perimeters, especially security personnel or those with duties placing them in proximity. Given the Veteran's extensive managerial duties for the Officer's Open Mess, including inventory management and property oversight near the runway, the Board found it reasonable to concede herbicide exposure. Resolving reasonable doubt in the Veteran's favor, service connection for Parkinson's disease was granted. The Veteran's tremors in the right hand and foot, initially claimed as secondary to a low back condition, were found by the Board to be related to his Parkinson's disease. Medical evidence, including a private neurology consultation and VA examinations, supported the diagnosis of Parkinson's disease and its association with the tremors. Therefore, service connection for the tremors was granted on a secondary basis to Parkinson's disease.

Rationale

Competent and credible lay statements and officer evaluation reports; Proximity to base perimeter conceded; Presumption of herbicide exposure applied

Full Decision Text

Citation Nr: 20070550
Decision Date: 10/30/20	Archive Date: 10/30/20

DOCKET NO. 15-24 278
DATE: October 30, 2020

ORDER

Entitlement to service connection for Parkinson’s disease is granted.

Entitlement to service connection for tremors in the right arm and hand associated with Parkinson’s disease is granted. 

Entitlement to service connection for tremors in the right leg and foot associated with Parkinson’s disease is granted.

FINDINGS OF FACT

1. Based on his competent and credible assertions of having served in close proximity to the perimeter of the U-Tapao Royal Thai Naval Air Field (RTNAF) in Thailand from October 1972 to October 1973, the Veteran is presumed to have been exposed to herbicides during his active service.  

2. The Veteran is diagnosed with Parkinson’s disease which is presumed to be related to his exposure to herbicides during his active service in Thailand. 

3. The Veteran is diagnosed with tremors in his right arm and hand as well as tremors in his right leg and foot that have been found to be associated with his Parkinson’s disease.

CONCLUSIONS OF LAW

1. The criteria for service connection for Parkinson’s disease due to presumed exposure to herbicides have been met.  38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309.

2.  The criteria for service connection for tremors in the right arm and hand associated with Parkinson’s disease have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

3. The criteria for service connection for tremors in the right leg and foot associated with Parkinson’s disease have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the U.S. Air Force from October 1969 to July 1992, to include service in Thailand at U-Tapao RTNAF from October 1972 to October 1973.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2013 and September 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).

In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of the proceeding is of record.

In a June 2019 decision, the Board denied the Veteran's claims of service connection for Parkinson’s disease, service connection for tremors of the right hand and fingers and service connection for tremors of the right foot.  

In that decision, the Board also remanded the issue of entitlement to an increased evaluation in excess of 10 percent for the Veteran’s service-connected low back disability in order to obtain an additional VA examination.  In a September 2020 rating decision, the RO increased the low back evaluation to 40 percent effective from December 3, 2019, the date of the VA spine examination.  The RO also issued a Supplemental Statement of the Case (SSOC) in September 2020.  The Board notes that the issue was recertified to the Board in October 2020 and will be addressed under separate cover. 

The Veteran appealed the June 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In May 2020, the Court granted a Joint Motion for Partial Remand (JMPR) of the Veteran and the Secretary of Veterans Affairs (the Parties) and vacated the portion of the Board’s decision in which it denied the claims of service connection for Parkinson’s disease, tremors of the right hand and fingers and tremors of the right foot.  The Parties agreed that the Board failed to discuss relevant evidence pertaining to the Veteran’s activities near the base perimeter of U-Tapao RTNAF and found the Board erred when it failed to provide adequate reasons and bases for its decisions. 

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3
 the Secretary of Veterans Affairs (the Parties) and vacated the portion of the Board’s decision in which it denied the claims of service connection for Parkinson’s disease, tremors of the right hand and fingers and tremors of the right foot.  The Parties agreed that the Board failed to discuss relevant evidence pertaining to the Veteran’s activities near the base perimeter of U-Tapao RTNAF and found the Board erred when it failed to provide adequate reasons and bases for its decisions. 

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  "To establish a right to compensation for a present 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'- the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

Even if the presumptive paths for establishing service connection are not available for the Veteran's disability, the claim could be granted if the three elements of direct service connection are shown by an equipoise standard of evidence.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 

Service connection may also be granted on a secondary basis for a disability that is proximately due to, aggravated by, or otherwise the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512-514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc).

1. Parkinson’s disease

The Veteran contends that he is entitled to service connection for Parkinson's disease because he was exposed to herbicide agents while stationed at U-Tapao RTAFB, Thailand between 1972 and 1973.  The Veteran asserts that his duties placed him near the perimeter of the base, and he states that his living quarters were also close to the perimeter of the base near the water where herbicides were sprayed.  In support of his claim, the Veteran submitted a photograph showing where he claims his hooch was located, as well as what he described as the perimeter of the base.

The Board notes that the Veteran’s current diagnosis of Parkinson’s disease and his active service at U-Tapao RTAFB from October 1972 to October 1973 are not in dispute.  The central inquiry in this case is whether the competent and credible evidence of record establishes that the Veteran’s duties brought him near the base perimeter in order for the presumption of herbicide exposure to attach. 

VA regulations provide that for a veteran who has been exposed to an herbicide agent, such as that contained in Agent Orange, during active service, service connection for Parkinson's disease will be presumed.  See 38 C.F.R. § 3.309 (e). 

A veteran, who during active service, served 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 the veteran was not exposed to any such agent during service.  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii).  

Here, the Veteran did not serve in the Republic of Vietnam.  Rather, he has asserted in-service exposure to herbicides while serving in Thailand at U-Tapao RTNAF between October 1972 and October 1973. 

VA Compensation Service has acknowledged that there is 'some evidence that the herbicides used on the Thailand base perimeters may have been either tactical,
 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 the veteran was not exposed to any such agent during service.  38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii).  

Here, the Veteran did not serve in the Republic of Vietnam.  Rather, he has asserted in-service exposure to herbicides while serving in Thailand at U-Tapao RTNAF between October 1972 and October 1973. 

VA Compensation Service has acknowledged that there is 'some evidence that the herbicides used on the Thailand base perimeters may have been either tactical, procured from Vietnam, or a commercial variant of much greater strength and with characteristics of tactical herbicides.'"  Parseeya-Picchione v. McDonald, 28 Vet. App. 171, 177 (2016) (quoting COMP. & PENSION SERV. BULL. (U.S. Dep't of Veterans Affairs, Washington, D.C.), May 2010, at 3).  Moreover, the Board must consider lay, historical, and archival evidence, in addition to service records, in determining whether there was service in Vietnam or exposure to herbicide agents elsewhere.  Parseeya-Picchione, 28 Vet. App. at 176.  In addition, VA policy is that, if a Veteran served as an Air Force security policeman, security patrol dog handler, or member of the security police squadron, or was otherwise near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, or other credible evidence, herbicide exposure should be acknowledged.  

In this case, the Board finds that the competent and credible evidence of record, to include the Veteran’s lay statements regarding his occupational duties and recreational activities placing him near the base perimeter, in conjunction with his officer evaluation reports detailing his work duties on the base, provide sufficient and persuasive evidence that he was near the base perimeter to concede his exposure to herbicides. 

The Veteran’s officer evaluation reports contained in his service personnel records show that his supervisory roles and duties as Secretary/Custodian of the Officer’s Open Mess were diverse and far reaching.  His officer evaluation report for the rating period immediately prior to his deployment to Thailand indicates that as Secretary/Custodian of the Officer’s Open Mess at Fairchild Air Force Base, he was involved in the standardization of purchase, inventories, and administrative procedures to increase efficiency with respect to recreation and messing of officers.  

From October 1972 to October 1973, the Veteran served as the Secretary/Custodian of the U-Tapao Officer’s Open Mess, the largest in Southeast Asia.  In his capacity as club custodian, he was noted to have supervised 32 military personnel and hired a Thai manager to help supervise 200 Thai employees.  He was also noted to have increased profits, streamlined operations, overhauled the quality of the food in the kitchen, trained staff, improved club sanitation, managed financial records, and was actively involved in a $53,000 complete refurbishment of the Open Mess facilities.  Moreover, he was noted to have managed and controlled the operations of all properties of the U-Tapao Officers Open Mess including improvement projects that contributed to the recreation and welfare of the officers such as searching for different forms of entertainment to provide recreation that appealed to a wide audience. 

His officer evaluation report for the period following his return from Thailand, dated from January 1974 to October 1974, is also highly probative for its expansive description of the Veteran’s occupational duties as an Officer’s Open Mess Manager while stationed at Ellsworth Air Force Base.  He was noted to receive, safeguard and account for money, property, equipment and other assets belonging to the club.  He also approved all purchases and expenditures and was responsible for hiring and firing employees.  Moreover, he was responsible for ensuring all required inventories were completed and had to account for all funds, property, equipment and other assets belonging to the club. 

In his January 2015 statement, the Veteran explained that some of his responsibilities included maintaining inventory and supplies which were warehoused on the perimeter in a Quonset hut located on the southeast end of the runway.  Moreover, the Veteran reported that he lived in a Morale Warfare and Recreation (MWR) hooch that was near the Quonset hut but located on the southwest end of the runway.  During his Board hearing, the Veteran testified that the hooch was an unauthorized living area constructed of plywood near the perimeter.  He acknowledged that his normal living quarters would have been in a concrete building located toward the middle of the base but because the hooch was in a beautiful location on the water at the end of the runway, he and
 statement, the Veteran explained that some of his responsibilities included maintaining inventory and supplies which were warehoused on the perimeter in a Quonset hut located on the southeast end of the runway.  Moreover, the Veteran reported that he lived in a Morale Warfare and Recreation (MWR) hooch that was near the Quonset hut but located on the southwest end of the runway.  During his Board hearing, the Veteran testified that the hooch was an unauthorized living area constructed of plywood near the perimeter.  He acknowledged that his normal living quarters would have been in a concrete building located toward the middle of the base but because the hooch was in a beautiful location on the water at the end of the runway, he and his superior officer decided to live there instead.  The Veteran testified that the MWR hooch in which he stayed stood approximately 50 to 100 feet from the perimeter fence and in support of his contention, the Veteran submitted a photograph that appears to show that these buildings were a short distance from the base perimeter fence.  

The Board finds that the Veteran’s personnel records demonstrate that his diverse functions as an Officer’s Open Mess Manager while at U-Tapao may not have relegated him to one building or area of the air base, particularly considering that the Officer’s Open Mess which he managed was the largest in Southeast Asia.  Furthermore, the Veteran stated that he went into town every other day or weekly to procure supplies such as fresh fruits and vegetables for the club and helped unload cargo from aircraft, including C-123 airplanes.  Given the numerous managerial roles the Veteran was reported to have undertaken by his raters, the Board finds it is reasonable to expect that he would have come into contact with the base perimeter while carrying out his work tasks.

The Board finds that the Veteran's statements describing his duties and activities while stationed at U-Tapao RTNAF are competent, credible and consistent with the contemporaneous evidence of record.  See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed, and which is within the realm of his personal knowledge); see also Dalton v. Nicholson, 21 Vet. App. 23, 38  (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.)

In conclusion, resolving reasonable doubt in the Veteran’s favor, the Board finds that the most competent and probative evidence of record shows that the Veteran was exposed to herbicide agents during his active service in Thailand at U-Tapao RTNAF.  Accordingly, service connection for Parkinson’s disease is granted. 

2.&3. Tremors in the right hand and fingers and tremors in the right foot associated with Parkinson’s disease

To the extent the Veteran initially claimed in his December 2010 and January 2011 written submissions that his right hand and right leg/foot tremors were secondary to his service-connected low back disability, the Board notes that VA spine examinations conducted during the appeal period indicate that the Veteran’s tremors are not proximately due to his lumbosacral spine disability.  

During his Board hearing, the Veteran testified that his tremors in the right hand and fingers and right foot were related to his Parkinson’s disease.  

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A September 2011 VA Agent Orange Protocol Examination reflects that the Veteran was diagnosed with tremors of the right hand and tremors of the right leg with nondiagnostic criteria for Parkinson’s disease at the time of the examination.  In this regard, the record shows that the Veteran was not clinically diagnosed with Parkinson’s disease until 2013 but had exhibited symptoms such as tremors of the right hand and foot prior to his formal diagnosis.  A private neurology consultation dated from April 2013 shows the physician found the Veteran’s tremors of the right hand and right leg to be consistent with Parkinsonian tremors.  By July 2013, the same physician had diagnosed the Veteran with tremor-predominant Parkinson’s disease.  In addition to the tremors, the Veteran also had rigidity and bradykinesia affecting his right side.  

Based on the competent and probative medical evidence of record associating the Veteran’s right upper and right lower extremity tremors to his Parkinson’s disease and in light of the grant of service connection for Parkinson’s Disease herein, the Board finds that service connection on a secondary basis is warranted for the Veteran’s claims of service connection for a right arm/hand tremor and right leg/foot tremor.

 

 

JAMES G
 hand and right leg to be consistent with Parkinsonian tremors.  By July 2013, the same physician had diagnosed the Veteran with tremor-predominant Parkinson’s disease.  In addition to the tremors, the Veteran also had rigidity and bradykinesia affecting his right side.  

Based on the competent and probative medical evidence of record associating the Veteran’s right upper and right lower extremity tremors to his Parkinson’s disease and in light of the grant of service connection for Parkinson’s Disease herein, the Board finds that service connection on a secondary basis is warranted for the Veteran’s claims of service connection for a right arm/hand tremor and right leg/foot tremor.

 

 

JAMES G. REINHART

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Krunic, 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.