Vietnam Veterans with Diagnosed Parkinson’s or Parkinson like symptoms.
Hi to all,
Shelia sent me the following data that is very important to those Vietnam Veterans and families that have been fighting the VA for service-connected disability associated with Parkinson’s and/or Parkinson like neurological symptoms.
You will find below a write up by Mayo Clinic that clearly points to a connection in males that were exposed to herbicides, a request for contact data, as well as two Board of Veterans Appeals cases awarding neurological issues associated to Parkinson’s and/or Parkinson like neurological disorders.
Now they do not differentiate between the massive amounts of militarized herbicides used with the unprecedented toxic TCDD levels nor the 6 to 25 the normal recommended dose rate that was used in Vietnam from the normal farmer or the rail road worker usage, etc.
At this time in our legacy, VA and IOM have both refused to associate military service in the herbicides as a presumptive disorder. Nevertheless, you will also find references of IOM stating the possibility of a connection.
In researching for my book, I also found many references to this neurological disorder as associated to these pesticides and/or herbicides.
The Office of Technology Assessment (OTA) was commissioned by congress in 1991 to get a nationwide consensus on toxic chemical damages. The Department of Veterans Affairs, for the most part, ignored most, if not all of these findings. It also seems congress did not take the data and “apply it” to those Veterans that said and experienced the same issues as OTA had found and pointed out.
The VA's proposal to compensate Vietnam veterans for peripheral neuropathy, as related to exposure to herbicides containing dioxin (Agent Orange), excludes neuropathies under a wide range of conditions. The proposed compensable neuropathies include only those manifested not later than 10 years following the date of exposure, and excludes those related to the effects of aging, alcohol abuse, trauma, other diseases known to be associated with peripheral neuropathy such as diabetes and Parkinson's disease, and exposure to other toxicants known to produce peripheral neuropathy. In making such exclusions, however, the VACEH did not take into consideration relevant information on neurological damage.
Because of a concern over the wide range of neurotoxic effects being induced in our population by manmade chemicals, the 101st Congress of the United States commissioned the Office of Technology Assessment to prepare a scientific consensus document in 1991 (OTA, 1990). As explained below, the VACEH basis for excluding peripheral neuropathies under its conditions contradicts the OTA's findings on the biological mechanism of neurotoxic damage such as peripheral neuropathy.
The VA proposed exclusion of peripheral neuropathies that only become evident 10 or more years after service in Vietnam, on the assumption that such a neuropathy could not be associated with Agent Orange exposure, due
to the long interval from exposure. This assumption contradicts the findings of the OTA, which found that neurological damage is not always detectable clinically, or noticeable by, the sufferer after exposure to a
neurotoxic substance such as dioxin. As time progresses or old age approaches, the rate of natural neuronal cell death accelerates, and the results of earlier neurological damage may first become evident, or unmasked (OTA, 1990). The availability of alternate neuronal pathways is reduced, which were formerly responsible for compensating for earlier toxic damage. The OTA specifically noted the importance of research showing the
possibility that neurotoxic substances were important in Alzheimer's disease, the degenerative brain disease of old age.
The VA also proposed exclusion of peripheral neuropathies which could only be attributed to diseases associated with neurological deficits (diabetes, Parkinson's disease) or alcohol abuse, under the assumption that the disease or alcohol abuse, and not dioxin, was the cause of neuropathy, similarly contradicts the findings of the OTA. The OTA found that damage to the nervous system from toxicants may first be unmasked by other conditions, such as diseases associated with neurological disorders or the voluntary intake of substances capable of neurological damage (alcohol, prescription drugs).
cited evidence that toxic chemicals might even be the
sole causative agents in some cases of
Parkinson's disease, since onset in certain families was at similar ages,
and since Parkinson's disease has increased significantly from 1962 to 1984
along with exposures to toxic chemicals. The OTA also cited evidence that the
substantial increase in the incidence of motor neuron disease and amyotrophic
lateral sclerosis (Lou Gehrig's disease) between 1962 and 1984 was due to
environmental exposures to neurotoxic chemicals.
It is therefore scientifically probable that in the future a higher incidence than normal of peripheral neuropathy will be experienced by Vietnam veterans due to Agent Orange exposure, despite the fact that the peripheral neuropathy was not detected in the 10-year interval after exposure in Vietnam. The degree or incidence of neurological damage in those Vietnam veterans suffering from diabetes or Parkinson's disease is
also predicted to be higher than others suffering from diabetes or Parkinson's disease, due to earlier aggravating exposures to Agent Orange.
For the same reasons, there is no scientific basis for presuming that alcohol abuse is the only cause of any peripheral neuropathy in a Vietnam veteran. The Secretary of Veterans' Affairs, therefore, should not place any limitations or exclusions on compensation for peripheral neuropathy, and following the congressional mandate of providing the benefit of the doubt to the Vietnam veteran. This so-called mandate as we all know is a joke, a sick government joke.
The exclusion of peripheral neuropathy associated with diabetes as a compensable disease is flawed for another reason. This is because the VACEH conveniently neglected the results of the Ranch Hand study (Roegner, et al., 1991) and other epidemiological research, which shows a dose-related significant association between diabetes and dioxin exposure. The minutes of the May 23, 1991 VACEH meeting discussed in detail the correlation between serum dioxin in Ranch Hand veterans and increasing diabetic rates, with Dr. Lathrop stating, "these are figures which support an association.” For the VA to now exclude peripheral neuropathy associated with diabetes, when the VA has not been able to exclude diabetes itself as being caused by dioxin, is spurious.
It is important to add here that Secretary Derwinski took the credibility of ‘any scientific conclusions being valid’ to a new low in medical history. What was a proposed as a 10-year inclusion was reduced to a one (1) year inclusion by Veterans Affairs. This should mean to anyone in science or the medical field that the Derwinski and the VACEH had no idea of the etiology of what was going on with the association; only mandates to make sure that:
A. Veterans would not be able to qualify to the nonsensical time requirements and the two-year time limit to resolution of the neurological disorder(s).
B. If Veterans Affairs admitted a CNS>PNS effect causation then the door would be wide open to even more long-term neurological disorders as well as neuro-psychiatric / neuro-psychological disorders.
NEGLECT OF CENTRAL NERVOUS SYSTEM (CNS) EFFECTS
The controlling majority of the VACEH, in making its recommendations to compensate Vietnam veterans for peripheral neuropathy, neglected to evaluate dioxin's central nervous system (CNS) effects. * Because the available evidence for CNS damage by dioxin outweighs that for peripheral nervous system (PNS) among Vietnam veterans, and because of the inseparable relationship between the biological mechanisms by with dioxin exerts both CNS and PNS effects, this failure of the VACEH is indefensible.
* The CNS consists of the neurological apparatus of the brain and spinal cord (including motor neurons), while the peripheral nervous system (PNS) consists of those nerves in the extremities of the body (arms, legs, etc.).
Peripheral neuropathies are one result of damage to the PNS.
CNS damage by fat soluble (lipophilic) neurotoxicants such as dioxin has always been found to accompany, and usually precede, any peripheral nervous system (PNS) damage such as peripheral neuropathy. See the discussions of relevant studies in the attached affidavit (Jenkins, 1991). The prestigious International Agency for Research on Cancer (IARC) concluded as early as 1977 that human CNS damage was associated with dioxin exposures (IARC, 1977a, 1977b). In 1986 the IARC clearly restated its’ finding that dioxin was associated with both peripheral neuropathies and personality changes, a neuropsychological consequence of CNS damage (IARC, 1986).
Since the IARC evaluations, many new epidemiological investigations have established an even stronger casual relationship between dioxin and CNS damage, including the Air Force investigations of veterans of Operation Ranch Hand.
TOXICOLOGICAL BASIS FOR CNS DAMAGE BY DIOXIN
A discussion of the biological basis for dioxin's neurological is relevant in demonstrating the inseparability of dioxin's effects on both the CNS and PNS. Neurotoxic substances may exert their effects by several mechanisms
(Anthony and Graham, 1991). Chemical attack of whole nerve cell structures may result in cell injury or death (neuropathy). Chemical attack may be specifically on the axon (long nerve fiber) (axonopathy), or the myelin
sheath of the axon (myelinopathy). Neurotoxicants may also damage or alter the neurotransmitter system, damage the glial cells, which support the primary neurons, or damage the blood vessels supplying the nervous system.
The OTA found that degeneration of the axon (axonopathy) is one of the most frequently determined neurological effects from neurotoxic chemicals (OTA, 1990). If the axon of a nerve cell dies back, it no longer reaches the
next nerve cell, muscle, etc., and cannot transmit any message. Because the longer axons have more targets (larger surface area) for toxic damage, it is predicted that the longer axons found in CNS are more effected by
neurotoxicants (Anthony and Graham, 1991), assuming the neurotoxicant is sufficiently lipophilic to cross the blood-brain barrier. A critical difference between nerve cell damage in the CNS compared to the PNS
is that PNS nerve cells can regenerate, while those of the CNS cannot. Thus, any toxic damage to the CNS is permanent.
Although the mechanism by which dioxin exerts its neurotoxic effects, have yet to be fully elucidated, the CNS effects are consistent with destruction of the nerve axons (axonopathy). Because of the extreme toxicity of dioxin
and the wide range of biological affects, however, the mechanisms of dioxin's neurotoxicity may not be limited to axonopathies. The hypothesis that dioxin damages the CNS and PNS by destruction of axons is supported by
the similarity of the neurological symptoms caused by dioxin and many other lipophilic neurotoxicants causing both CNS and PNS axonopathies, including carbon disulfide, hexane, methyl n-butyl ketone, trichloroethylene,
polybrominated biphenyls, and polychlorinated biphenyls
(Anthony and Graham, 1991), discusses the enduring CNS deficits found among populations exposed to these other lipophilic neurotoxicants.
Lipophilic toxicants such as dioxin are able to cross the blood-brain barrier to affect the CNS. In addition, since the brain is 50 percent lipid (dry weight), compared to 6 to 20 percent lipid in other organs (OTA, 1990), the brain may be particularly vulnerable to accumulating dioxin into its fat content. Nervous system tissue itself, with its high lipid content, will also act as a selective repository for dioxin. In addition, the low elimination rate of dioxin from the body will contribute to its ability to reach equilibrium concentrations in lipid-rich nervous system
The mechanism by which dioxin exerts its neurotoxic effects may differ from that of 2,4-D alone (Agent White). The higher polarity of 2,4-D (less lipophilic) compared to dioxin suggests that it would be less capable of penetrating the blood-brain.
Neuropsychological damage may be one of the most significant consequences of exposure to Agent Orange. The Office of Technology Assessment (OTA, 1990) concluded that neurotoxic chemicals play a significant casual role in development of psychiatric as well as neurological disorders. Even minor changes in the structure or function of the nervous system were found to have profound consequences for behavioral and other neurological functions.
The OTA found that neurotoxic chemicals can cause or exacerbate anxiety, depression, mania, and psychosis.
It is simply amazing how
our congress cannot put two and two together and come up with the correct answer
even when they paid for the study results. I guess they figure THEY did the
study; what more do you VETERANS want! Justice and GOVERNMENT ACCOUNTABLY;
Mayo Clinic in
Wednesday, June 14, 2006
Study Concludes that Pesticide Use Increases Risk of Parkinson's in Men
For appointments or more information, call the Central Appointment Office at 507-284-2111.
Other Web Resource: Patient's Guide
For more information, contact:
ROCHESTER, Minn.--Mayo Clinic researchers have found that using pesticides for farming or other purposes increases the risk of developing Parkinson's disease for men. Pesticide exposure did not increase the risk of Parkinson's in women, and no other household or industrial chemicals were significantly linked to the disease in either men or women.
Findings will be published in the June issue of the journal Movement Disorders.
"This confirms what has been found in previous studies: that occupational or other exposure to herbicides, insecticides and other pesticides increases risk for Parkinson's," says Jim Maraganore, M.D., Mayo Clinic neurologist and study investigator. "What we think may be happening is that pesticide use combines with other risk factors in men's environment or genetic makeup, causing them to cross over the threshold into developing the disease. By contrast, estrogen may protect women from the toxic effects of pesticides."
The investigators identified all those in Olmsted County, Minn., home of Mayo Clinic, who had developed Parkinson's disease between 1976 and 1995. Each person with Parkinson's disease was matched for comparison to someone similar in age and gender who did not have the disease. The researchers conducted telephone interviews with 149 of those with Parkinson's and 129 of those who did not have the disease, or a proxy for these people, to assess exposure to chemical products via farming occupation, non-farming occupation or hobbies. The investigators were unable to determine through these interviews the exact exposure levels of these individuals or the cumulative lifetime exposure to pesticides.
Overall, the study found that the men with Parkinson's were 2.4 times more likely to have had exposure to pesticides than those who did not have Parkinson's. Women who had Parkinson's, on the other hand, had a far lower frequency of exposure to pesticides than men with the disease.
This study was undertaken due to conflicting results from previous studies of pesticides and other chemical products and risk for Parkinson's.
Funding for the study is from two grants from the National Institutes of Health.
The medical-records linkage system of the Rochester Epidemiology Project also made this study possible.
By Professor Michael Myers
Governments lie to their citizens. It is the norm. We have come to expect it. Sometimes we like it that way. Lies can provide psychological comfort.
A senior legal helpline caller has encountered the contradiction of promises versus funding. He is a 62-year-old Vietnam veteran who served with the United States Marine Corp at the Chu Lai Air Base. “We were all exposed to Agent Orange during our tour of duty there,” he said. “I found out in 2000 that I have Parkinson’s disease. I filed a claim in 2001 and was turned down.”
The Veterans Administration ruled “Despite the presumption of in-service herbicide exposure in Vietnam, the Board is not in a position to grant service connection because the veteran’s neurological disorder did not appear within weeks or months of exposure to herbicide agent and resolved within two years of onset.”
Mayo Clinic physicians believe the caller’s Parkinson’s is the result of his exposure to Agent Orange while serving in the Republic of Vietnam. “Mayo researchers have found that using pesticides for farming or other purposes increases the risk of developing Parkinson’s disease for men,” according to the June 2007 issue of Movement Disorders. Veteran’s law judges in two cases have found an Agent Orange-Parkinson’s connection, but their rulings are not binding on the Board of Veterans’ Appeals.
It is unlikely the current administration will add Parkinson’s to the list of Agent Orange residual conditions. A well-executed legal and political strategy is needed. If you or a person you know has Parkinson’s and served in Vietnam, contact me at 1-605-677-6343, or email at email@example.com.
(Pro bono legal information and advice is available to persons 55 and older through the USD Senior Legal Helpline, 1-800-747-1895; firstname.lastname@example.org. Opinions are solely those of the author and not the University of South Dakota).
Citation Nr: 0519813
Decision Date: 07/21/05 Archive Date: 08/03/05
DOCKET NO. 94-37 191 ) DATE
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
Entitlement to service connection for a neurological
disorder, claimed as due to in-service herbicide exposure.
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The veteran and his son.
ATTORNEY FOR THE BOARD
L. Cryan, Counsel
The veteran had active service from June 1966 to October
1969, with approximately four months of additional prior
This matter comes before the Board of Veterans' Appeals
(Board) from a March 1994 rating decision of the RO, which
denied the veteran's claim seeking entitlement to service
connection for a neurological disorder, claimed as peripheral
neuropathy, due to alleged exposure to Agent Orange while in
Vietnam. The veteran submitted a notice of disagreement with
that rating decision in May 1994. In July 1994, he was
provided with a statement of the case. His substantive
appeal was received in September 1994.
The Board notes that the veteran had previously claimed
entitlement to service connection for a neurological
disorder, claimed as Parkinson's disease, due to alleged
exposure to Agent Orange while in Vietnam, which was denied
by an October 1988 rating decision. The veteran submitted a
notice of disagreement with that rating decision in January
1989. In February 1989, he was provided with a statement of
the case. His substantive appeal was received in March 1989.
The matter was received at the Board in October 1989 but was
referred back to the RO pending review and revision of
herbicide regulations. The RO then also deferred a decision
on the claim pending updated proposed regulations.
As noted in a June 1999 remand by the Board, the RO, in the
currently appealed March 1994 rating decision essentially
considered both the claimed peripheral neuropathy and the
claimed Parkinson's disease. Given that the veteran has
claimed service connection for a neurological disorder,
initially claimed as Parkinson's disease and subsequently
claimed as peripheral neuropathy, and given that the
veteran's claims were essentially one continuous claim for
the same neurological disorder, the Board has simply
characterized the veteran's claim as entitlement to service
connection for a neurological disorder, claimed as due to
Agent Orange exposure. The issue has been so identified on
the title page hereinabove.
The veteran testified at a personal hearing before the
undersigned Veterans Law Judge, sitting at the RO in
September 1997. A transcript of his testimony is associated
with the claims file.
Finally, it is noted that the case was previously twice
before the Board and was remanded to the RO in January 1998
and June 1999 for additional evidentiary development.
Following compliance with the Board's directives on Remand,
the case is now returned to the Board for further appellate
FINDINGS OF FACT
1. The veteran had active military service in the Republic
of Vietnam during the Vietnam era, and is therefore presumed
to have been exposed to herbicide agents in service.
2. The veteran has a currently diagnosed neurological
disorder with Parkinson-like characteristics, also referred
to as Parkinsonism.
3. The veteran's neurological disorder may not be
presumptively service connected under the provisions of 38
C.F.R. § 3.309(e).
4. The competent and probative medical opinions of record
have determined that the veteran's currently diagnosed
neurological disorder is at least as likely as not due to in-
service exposure to Agent Orange.
CONCLUSION OF LAW
With resolution of all doubt in the veteran's favor, the
veteran's currently diagnosed neurological disorder, referred
to as Parkinsonism and Parkinson-like syndrome, was incurred
in service as a result of in-service herbicide exposure in
Vietnam. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.159, 3.303 3.304 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran asserts that service connection is warranted for
his neurological disorder with symptomatology which mirrors
that of Parkinson's disease, which he claims is due to in-
service herbicide exposure in the Republic of Vietnam.
I. Duties to Notify and Assist
At the outset, the Board notes that on November 9, 2000, the
Veterans Claims Assistance Act of 2000 (VCAA) was enacted.
See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Among other
things, the VCAA amended 38 U.S.C.A. § 5103 to clarify VA's
duty to notify claimants and their representatives of any
information and evidence that is necessary to substantiate
the claim for benefits. The VCAA also created 38 U.S.C.A. §
5103A, which codifies VA's duty to assist, and essentially
states that VA will make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate a
claim. Implementing regulations for the VCAA were
subsequently enacted, which were also made effective
November 9, 2000, for the most part. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.159). The
intended effect of the implementing regulations was to
establish clear guidelines consistent with the intent of
Congress regarding the timing and scope of assistance VA will
provide to claimants who file a claim for benefits. See 66
Fed. Reg. 45,620 (Aug. 29, 2001). Both the VCAA and the
implementing regulations are applicable in the present case,
and will be collectively referred to as "the VCAA."
Pertinent to the merits of the veteran's claim of entitlement
to service connection for a neurological disorder, the Board
finds that the provisions of the VCAA have been complied
with. In light of the complete grant of benefits sought on
appeal (entitlement to service connection for a neurological
disorder), no further evidence is necessary to substantiate
the veteran's claim for service connection. See 38 U.S.C.A.
§ 5103(a) (West 2002). In this veteran's case, there is no
reasonable possibility that further assistance would aid in
substantiating the claim for VA compensation benefits. See
38 U.S.C.A. § 5103A(a)(1),(2) (West 2002). Also, further
notice to the veteran concerning the evidence necessary to
substantiate his claim or regarding responsibilities in
obtaining evidence would serve no useful purpose.
II. Factual Background
The veteran's service medical records are negative for
complaints, findings, or diagnosis of a neurological disorder
of any kind.
A review of the post-service evidentiary record reveals
numerous medical records clearly indicating that the veteran
has been diagnosed with a neurological disorder, although
there has been some degree of variance in the precise nature
of that diagnosis.
A September 1982 private neurology consultation report
prepared by Dr. K, indicated that the veteran was
experiencing progressive weakness of the left side of the
body and noted that he had a history of having polio of the
left arm and left leg when he was age 22 months. There was
also a history of having served two tours of duty in Vietnam.
Other numerous subsequent private medical records from the
neurological offices of Dr. L as well as from a Duke
University Medical Center doctor indicated that the veteran
began experiencing left sided numbness in 1982 and there are
several diagnoses of Parkinsonism shown from 1983. At one
time, it was thought that the veteran's neurological symptoms
could be attributed to basal ganglia disease. Other doctors
noted that the veteran may not have a pure form of
Parkinsonism, but instead, a Parkinson-plus syndrome such as
a progressive supranuclear palsy.
The veteran underwent a VA neurological examination in July
1988, and he gave a history of having been exposed to dioxins
in service. The veteran reported symptoms to include
slowness of movement, muscle stiffness, poor coordination,
slurred speech, excessive salivation, muscle twitching,
muscle cramps, tremor, and involuntary movements. The
examiner noted that the veteran had many features of
Parkinson's Disease, but noted that his picture was unusual.
First, the examiner pointed out that the veteran was young.
Next, the examiner noted that he could never see the true
resting tremor, and muscle tone was not significantly
increased on testing. On the other hand, he showed a lot of
the variability of muscle function that one did see in
Parkinsonism, and he could never convince himself that the
veteran was functional. Therefore, the examiner diagnosed a
neurological problem that was similar to Parkinson's and may
be a variety of such. He further stated that he was not
aware of the veteran's picture being seen with dioxin
exposure, but would defer that question to those with more
knowledge in that field.
Amongst other medical evidence of record is a July 1990
letter from Dr. R, a PhD and toxicologist, with the State of
North Carolina, Department of Environment, Health, and
Natural Resources, Division of Epidemiology. Dr. R referred
to various scientific literature indicating a possible
relationship between dioxin exposure and various neurological
disorders, indicating that one cannot rule out the possible
role of dioxin as a causal agent for various neurological
disorders, including Parkinson's disease. Dr. R noted that
recent scientific literature had brought to light the
possibility of environmental causes of neurological
disorders, as opposed to genetic causes, and that this may be
the reason why more young people were developing that
Also of record is a report of Dr. R, dated February 1991 and
titled "[veteran's name] - A Possible Association Between
His Current Medical Problems and Exposure to Agent Orange in
Vietnam." This 21 page report, plus attached appendices,
contained references to numerous scientific studies and
literature discussing potential neurological health effects
of dioxin exposure. Dr. R further indicated that it did not
appear that the veteran had true Parkinson's but instead had
Parkinson like symptoms and based upon an evaluation of
scientific literature, Dr. R stated that it was possible,
indeed quite probable, that the veteran's condition may stem
from past Agent Orange exposure. It is noted that Dr. R's
opinion was based upon the veteran's history of having been
stationed in Dong Ha and Quang Tri and having been subject to
significant amounts of Agent Orange spraying in those areas.
Dr. R elsewhere stated that the veteran "was in an area that
was subject to extensive Agent Orange treatment and exposure
for an extended period of time."
In December 1991, Dr. L prepared a memorandum in which he
notes that the sum total of all of the information provided
by Dr. R's report suggested an association between the
veteran's exposure to dioxin and possible development of
At his personal hearing before the undersigned Veterans Law
Judge in September 1997, the veteran testified that he was in
good health at the time he was discharged from service. The
veteran testified that he could find no family history of a
neurological disorder, and that he had never had any kind of
traumatic injuries that may have stimulated a central nervous
system dysfunction. Furthermore, the veteran testified that
he never worked in any type of environment where he was
exposed to excessive chemicals.
Following the Board's January 1998 Remand, the veteran
underwent a VA neurological examination in September 1998.
It was noted that the veteran was in a wheelchair due to an
inability to control his movements, especially on the left.
Movements of his face were symmetric but limited in
excursion. He could move his tongue perhaps half of the
normal range. He was constantly writhing. He had normal
strength in the deltoids, triceps and biceps, but the testing
was interrupted by constant twisting, as severe as the
examiner had seen in many years. The examiner found it
interesting that sensation was within normal limits,
including superficial sensation, traced figures, and
vibration in four extremities, and joint sense in the lower
extremities. The provided a history of dioxin exposure in
service. The diagnosis was that of chronic severe
generalized choreoathetosis with preserved reflexes,
strength, sensation, and intellect. The examiner
specifically found that this was not an acute or sub-acute
peripheral neuropathy. It was also stated that there was a
moderate to strong possibility that the veteran's bizarre
movements were a result of exposure to some chemical during
In the June 1999 remand, the Board pointed out that the
aforementioned report of Dr. R and the most recent VA
examination provided clear medical evidence of a current
diagnosis of a neurological disorder, and further supported a
nexus between the current diagnosis and chemical exposure in
service, more specifically dioxin exposure. However, at the
time of the June 1999 remand, VA laws and regulations did not
permit a presumption of exposure to Agent Orange based solely
on having served in-country during the Vietnam Era. As such,
the case was remanded for development, specifically to
determine if the veteran was likely exposed to Agent Orange
during service in Vietnam.
In the meantime, it was confirmed that the veteran served in
Vietnam from April 28, 1967 to December 3, 1967 and from June
26, 1969 to September 26, 1969.
In March 2001, the case was referred to the VA Under
Secretary for Health for review and preparation of a medical
opinion. In response, VA's Chief Public Health and
Environmental Hazards Officer first noted that the veteran
had documented exposure to herbicides based on Department of
Defense records of Agent Orange spraying. The opinion also
noted that in its most recent report, Veterans and Agent
Orange Update 1998, the Institute of Medicine (IOM) committee
concluded that there was inadequate/insufficient evidence to
determine whether an association exists between exposure used
in Vietnam and motor/coordination dysfunction. Parkinson's
Disease was included in this group of disorders by the IOM.
In light of the foregoing, the Chief Public Health and
Environmental Hazards Officer opined that it was possible
that the veteran's neurological disorder could be attributed
to exposure to herbicides; however, she could not state that
Agent Orange exposure was likely or at least as likely as not
to be responsible.
In response to the opinion from the Under Secretary of
Health, the RO opined, as a result of the opinion by the
Under Secretary, and following review of the evidence in its
entirety, the veteran's disability was not the result of
Agent Orange exposure.
In a December 2001 memorandum, Dr. G, of the Washington
Hospital Center, noted a possible etiology of the veteran's
neurological disorder. Dr. G noted the veteran's history of
Parkinson-like symptoms, Parkinsonism, and the lack of a
clearly defined neurological syndrome dating back to 1982.
Dr. G noted that the initial medical evaluations of the
veteran's condition performed by several neurologists seemed
to be suggestive of a neurological syndrome that had some
similarities to Parkinson's disease, but in some respects was
quite different. Dr. G found that such a neurological
condition, initially diagnosed at a young age raised several
questions concerning a possible etiology. Dr. G found that
the significant evidence provided by Dr. R strongly suggested
that the offending agent may have been dioxin found in Agent
Orange preparation. Dr. G found that Dr. R's research in
that subject provided overwhelming support of a probable
nexus between exposure to those compounds and the
manifestations of acute and chronic neurological damage as
well as the myriad symptoms experienced by the veteran. In
conclusion, Dr. G opined that it was as likely as not that
the highly unusual symptomatology observed in the veteran at
an extremely young age was related to his exposures during
In response to Dr. G's medical opinion, the Chief Officer of
the Office of Public Health and Environmental Hazards
prepared another opinion, in March 2002, regarding the
possible etiology of the veteran's neurological disorder.
The opinion noted that the most recent report from the
National Academy of Sciences "Veterans and Agent Orange-
Update 2000" reaffirmed their earlier conclusions on the
lack of an association between herbicide exposure and
Parkinson's or related neurological diseases. It was noted
that the National Academy of Sciences further stated that in
the future, as diagnostic accuracy for Parkinson's disease
improved, and when herbicide exposure assessment is
quantitated with specific biomarkers, and further research
confirms the gene-toxicant interaction in larger prospective
studies of Parkinson's disease, the evidence for association
may change. The Chief Officer of the Office of Public Health
and Environmental Hazards found, in essence, that Dr. R's
1991 opinion was outdated, and not supported by National
Academy of Sciences current review of medical and scientific
evidence. It was noted that VA relied extensively upon the
independent and highly credible medical and scientific
analysis provided by the NAS in establishing associations
between herbicide exposure and health effects in veterans.
We shall see just how independent NAS/IOM is on July 18th at the Disability Commission meeting. From my research, it looks as if they are caught between a rock and hard place as our legal “judge and jurors.” Scientific associations to cause and effect (Absolutes) are not the same as legal “as least as likely as not associations; or highly plausible; or biologically plausible associations.” Including lets not forget there is a government contract involved here in which its mandates or either secret or the team of VA/NAS-IOM does not want to come forward with the real requirements to mandate a presumption. No different than the VACEH from 1979 to 1991 that operated with extreme bias and even possible conflict of prior professional interest and publicly pre-stated opinions. Not exactly a non-biased scientific endeavourer for our dead and dying Vetearns.
Therefore, she again opined that it was possible that the
Parkinson's or Parkinson's-like disease diagnosed in the
veteran could be related to exposure to herbicide in service.
However, they could not state that it was as likely, or more
likely than not, that his disease was the result of herbicide
In light of the aforementioned March 2002 opinion, the RO
found that there was no reasonable possibility that the
veteran's Parkinson's or Parkinson's-like disease resulted
from exposure to herbicides in service.
After the case was returned to the Board, the Board
determined that an Independent Medical Opinion might be
useful in determining the likely etiology of the veteran's
In the meantime, both Dr. R and Dr. G responded to the March
2002 opinion by the Under Secretary of Health. Dr. R
provided a lengthy report nearly 25 pages long noting a more
likely than not association between the veteran's current
medical problem and exposure to Agent Orange during service
in Vietnam. In essence, the report finds an environmental
link to Parkinson-like symptoms illustrated by numerous
physicians in medical and scientific literature cited to by
Dr. R in his report. Moreover, Dr. R noted that the National
Academy of Sciences, in their report "Veterans and Agent
Orange-Update 2002, were in general agreement with the
information presented in his report. Dr. R concluded that
because the evidence shows that the veteran was directly
exposed to Agent Orange, and because the new medical peer-
reviewed literature evidence presented in the report and the
strength of the individual epidemiological studies relating
the veteran's exposure to Agent Orange in Vietnam, it was
more likely than not that the Vietnam exposure to Agent
Orange is responsible for his present medical condition; and
that the new and existing information in the report, more
likely than not links the veteran's Agent Orange exposure to
his current neurological problems.
In a January 2005 response to the Board's request for an
independent medical opinion, a doctor from the Washington
University School of Medicine noted that he reviewed the
medical record and did not feel that he could render an
opinion regarding the relationship between the veteran's
exposure to Agent Orange and his Parkinsonion syndrome with
the available information. The doctor noted that he would
have to perform a history and examination of the veteran to
determine the likely cause of his Parkinsonism.
Dr. G noted that the evidence indicated that the veteran was
exposed to Agent Orange during service, and also noted Dr.
R's more recent medical data supporting a strong association
between dioxins and subsequent manifestations of acute and
chronic neurological damage as well as the myriad symptoms
experienced by the veteran. Dr. G therefore concluded that
the additional data gave further support to the case, and
opined that it was as likely as not that the highly unusual
symptomatology observed in the veteran at an extremely young
age is related to his Agent Orange exposure during service.
III. Legal Criteria and Analysis
Under the relevant regulations, service connection may be
granted for a disability resulting from disease or injury
incurred in or aggravated by active service. 38 U.S.C.A. §
1110 (West 2002). If a chronic disease is shown in service,
subsequent manifestations of the same chronic disease at any
later date, however remote, may be service connected, unless
clearly attributable to intercurrent causes. 38 C.F.R. §
3.303(b) (2004). However, continuity of symptoms is required
where the condition in service is not, in fact, chronic or
where diagnosis of chronicity may be legitimately questioned.
38 C.F.R. § 3.303(b) (2004).
Further, service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 U.S.C.A. § 1113(b) (West
2002); 38 C.F.R. § 3.303(d) (2004). The Board must determine
whether the evidence supports the claim or is in relative
equipoise, with the appellant prevailing in either case, or
whether the preponderance of the evidence is against the
claim, in which case, service connection must be denied.
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Additionally, where a veteran served continuously 90 days or
more during a period of war or during peacetime service after
December 31, 1946, and an organic disease of the nervous
system becomes manifest to a degree of at least 10 percent
within one year from the date of termination of service, such
a disease shall be presumed to have been incurred in or
aggravated by service, even though there is no evidence of
such a disorder during the period of service. 38 U.S.C.A. §§
1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309
In addition to the regulations governing entitlement to
service connection outlined above, 38 C.F.R. § 3.309(e)
provides that if a veteran was exposed to an herbicide agent
during active military, naval, or air service, the diseases
set forth in 38 C.F.R. § 3.309(e) shall be service-connected
if the requirements of 38 C.F.R. § 3.307(a)(6) are met even
though there is no record of such disease during service,
provided that the rebuttable presumption provisions of 38
C.F.R. § 3.307(d) are also satisfied. These diseases include
chloracne, Type 2 diabetes (also known as Type II diabetes
mellitus or adult-onset diabetes), Hodgkin's disease,
multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute
peripheral neuropathy, porphyria cutanea tarda, prostate
cancer, respiratory cancers (including cancer of the lung,
bronchus, larynx, or trachea), and soft-tissue sarcoma. 38
U.S.C.A. § 1116(a)(2) (West 2002); 38 C.F.R. § 3.309(e)
(2004). For purposes of this section, the term acute and
subacute peripheral neuropathy means transient peripheral
neuropathy that appears within weeks or months of exposure to
an herbicide agent and resolves within two years of the date
of onset. 38 C.F.R. § 3.309(e), Note 2 (2004).
A veteran 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, 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 that service. The last date on which such a veteran
shall be presumed to have been exposed to an herbicide agent
shall be the last date on which he served in the Republic of
Vietnam during the Vietnam era. 38 U.S.C.A. § 1116 (West
2002); 38 C.F.R. § 3.307(a)(6)(iii) (2004). The Board notes
that in June 2003, 38 C.F.R. § 3.307(a)(6)(iii) was amended
to expand the presumption of exposure to herbicides to
include all Vietnam veterans, not just those who have a
disease on the presumptive list in 38 U.S.C.A. § 1116(a)(2)
and 38 C.F.R. § 3.309(e). See 68 Fed. Reg. 34539, 34541
(June 10, 2003). Thus, the veteran is presumed to have been
exposed to herbicides because he served in Vietnam during the
Despite the presumption of in-service herbicide exposure in
Vietnam, the Board is not in a position to grant service
connection for the veteran's neurological disorder on a
presumptive basis as due to herbicide agent exposure, as the
veteran's neurological disorder, manifested by Parkinson-like
symptomatology, did not "[appear] within weeks or months of
exposure to a herbicide agent and [resolve] within two years
of onset." 38 C.F.R. § 3.309(e), Note 2. However, in the
case of Combee v. Brown, 34 F. 3d 1039 (Fed Cir. 1994), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) held that a veteran was not precluded from
presenting proof of direct service connection between a
disorder and exposure even if the disability in question was
not among conditions enumerated under the Veterans' Dioxin
and Radiation Exposure Compensation Standards Act, the
presumption not being the sole method for showing causation.
Hence the veteran may establish service connection for a
neurological disorder by presenting evidence establishing
that it is at least as likely as not that his neurological
disorder, also referred to as Parkinsonism and Parkinson-like
symptoms, was caused by his presumed in-service herbicide
agent exposure. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R.
§ 3.303 (2004); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
In this case, the medical evidence of record tends to support
the veteran's assertions that his neurological disorder was
caused by in-service herbicide exposure. More specifically,
the medical opinions of Drs. L, R, and G have found an
association between the veteran's unusual neurological
disability and exposure to Agent Orange in service. These
doctors have repeatedly noted the unusual symptomatology,
similar to, yet different in some respects, from Parkinson's
Disease. These doctors have also repeatedly noted that the
onset of the veteran's symptoms at a young age was unique,
supporting the notion that exposure to herbicides during
service as likely as not led to the veteran's neurological
disorder. Furthermore, Dr. R, who specializes in toxicology,
provided a complete rationale for his opinion, providing a
report of extensive research which cited multiple medical and
Moreover, the VA physicians who examined the veteran during
the pendency of this appeal also provided opinions that it
was at least as likely as not that the veteran's presumed in-
service herbicide exposure led to the current neurological
The Board is mindful that VA's Chief Public Health and
Environmental Hazards Officer provided opinions in 2001 and
2002 in which she stated that there was
inadequate/insufficient medical/scientific evidence to
determine whether an association existed between exposure to
herbicides and neurological dysfunction. She also noted that
Dr. R's 1991 opinion was based on outdated research.
However, Dr. R provided a second opinion noting a likely
association between the veteran's in-service herbicide
exposure and his neurological disorder, based on updated
scientific and medical information.
In sum, several private and VA doctors have found an as
likely as not association between the veteran's in-service
herbicide exposure and his current neurological disorder.
Although VA's Chief Public Health and Environmental Hazards
Officer could not state that it was at least as likely as not
that the veteran's neurological disorder was caused by in-
service herbicide exposure, she did state that it was
In light of the foregoing, the Board finds that the
preponderance of the competent and probative evidence
supports the veteran's claim because all of the opinions of
record find either that it is possible, or at least as likely
as not, that the veteran's neurological disorder resulted
from in-service herbicide exposure. In the absence of clear
contrary medical evidence, the opinion of the Chief Officer
of the Office of Public Health and Environmental Hazards,
coupled with the multiple positive opinions by Drs. L, R, G
and the VA doctors, provide a preponderance of the evidence
supporting the claim for entitlement to service connection
for a neurological disorder, referred to as Parkinsonism and
Parkinson-like syndrome. Accordingly, a grant of service
connection is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West
2002); 38 C.F.R. § 3.303(d) (2004).
Service connection for a neurological disorder, referred to
as Parkinsonism and Parkinson-like syndrome, is granted.
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Citation Nr: 0515609
Decision Date: 06/09/05 Archive Date: 06/21/05
DOCKET NO. 02-22 169 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
Entitlement to service connection for Parkinson's disease, to
include as a result of exposure to an herbicide agent.
Appellant represented by: Sharon A. Hatton, Attorney at
ATTORNEY FOR THE BOARD
E. Pomeranz, Counsel
The appellant had active military service from July 1970 to
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a June 2002 rating action by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Winston-Salem, North Carolina.
FINDING OF FACT
The appellant's Parkinson's disease is related to his in-
service herbicide exposure.
CONCLUSION OF LAW
Parkinson's disease was incurred in active military service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
In November 2000, the Veterans Claims Assistance Act of 2000
(VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002). Regulations
implementing the VCAA are applicable to the appellant's
claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2004).
With respect to VA's duty to notify, the RO sent the
appellant a letter in May 2002, prior to the initial rating
decision with regard to the issue on appeal, in which the
appellant was notified of the types of evidence he needed to
submit, and the development the VA would undertake. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letter
specifically informed the appellant what was needed from him
and what VA would obtain on his behalf. Id. The appellant
was also informed of the elements needed to substantiate a
service connection claim, including requirements specific to
Agent Orange claims. In addition, the Board observes that
the October 2002 statement of the case provided the appellant
with the text of the relevant portions of the VCAA, as well
as the implementing regulations. The Board further notes
that there is no indication that there is additional evidence
that has not been obtained and that would be pertinent to the
present claim. The appellant has been notified of the
applicable laws and regulations pertinent to his service
connection claim. Moreover, the appellant has been afforded
the opportunity to present evidence and argument in support
of the claim. Id. Thus, VA's duty to notify has been
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate a claim. 38 C.F.R.
§ 3.159(c). The duty to assist includes providing a medical
examination or obtaining a medical opinion when such is
necessary to make a decision on the claim. In this regard,
the Board notes that in August 2004, the appellant underwent
a VA examination which was pertinent to his service
connection claim. In addition, in February 2004, the Board
referred this case for a medical opinion from a Veterans
Health Administration (VHA) physician. The Board further
observes that in this case, there is no outstanding evidence
to be obtained, either by VA or the appellant. Consequently,
given the standard of the new regulation, the Board finds
that VA did not have a duty to assist that was unmet. The
Board also finds, in light of the above, that the facts
relevant to this appeal have been fully developed and there
is no further action to be undertaken to comply with the
provisions of the regulations implementing the VCAA.
Therefore, and in light of the decision herein, the appellant
will not be prejudiced as a result of the Board proceeding to
the merits of the claim. See Bernard v. Brown, 4 Vet. App.
384, 392-94 (1993); see also Mayfield v. Nicholson, No. 02-
1077 (U.S. Vet.App. April 14, 2005).
II. Factual Background
The appellant's DD 214, Armed Forces of the United States
Report of Transfer or Discharge, shows that he served in the
United States Army from July 1970 to April 1972. The
appellant's DD 214 also reflects that he served in the
Republic of Vietnam from July 1971 to March 1972.
The appellant's service medical records are negative for any
complaints or findings of Parkinson's disease. The records
show that in March 1972, the appellant underwent a separation
examination. At that time, the appellant was clinically
evaluated as "normal" for neurologic purposes.
In March 2002, the appellant filed a claim for entitlement to
service connection for Parkinson's disease. At that time, he
maintained that his currently diagnosed Parkinson's disease
was due to his exposure to Agent Orange while he was serving
in the Republic of Vietnam.
In June 2002, the RO received private medical records, from
February 2000 to June 2001. The records show that in March
2001, the appellant sought treatment from Valerie A. Lasko,
M.D., for complaints of a tremor. At that time, Dr. Lasko
noted that according to the appellant, he first noticed his
tremor in approximately January 2000. When asked about
exposure to heavy metals, the appellant reported extensive
involvement with lead while working in a remodeling and
restoration business. The appellant also stated that he had
used pesticides extensively. The assessment was Parkinson's
disease and Dr. Lasko indicated that in light of the
appellant's history of metal exposure, she would request a
heavy metal screen. The records reflect that in June 2001,
Dr. Lasko reported that the appellant's heavy metal screen
from March 2001 was within normal limits.
A private medical statement from Ellis F. Muther, M.D., dated
in June 2002, shows that at that time, Dr. Muther stated that
the appellant had a two-year history of
Parkinson's disease. According to Dr. Muther, no explanation
for the appellant's disorder had been found "except a
possible exposure to Agent Orange." Dr. Muther indicated
that Agent Orange had been demonstrated to be a neurotoxin,
and, as such, he opined that it was highly possible that that
was a contributing factor in the etiology of the appellant's
In Fast Letter 03-20, issued by the Veterans Benefits
Administration on June 25, 2003, it was noted that a study by
the National Academy of Sciences found that the credible
evidence against an association between herbicide exposure
and Parkinson's disease outweighed the credible evidence for
such an association.
In December 2003, the Board remanded this case and requested
that the appellant be afforded a VA neurological examination
to determine the etiology of any Parkinson's disease found.
As per the Board's December 2003 remand decision, in August
2004, the appellant underwent a VA examination. Following
the physical examination and a review of the appellant's
claims file, the examiner diagnosed the appellant with
Parkinson's disease, with a predominant tremor. The examiner
noted that in private medical records from Dr. Lasko, Dr.
Lasko had referred to the appellant's occupation of
remodeling rental homes and the possibility that the
appellant was exposed to lead based paints. However, the
examiner reported that the appellant's heavy metal screens
came back negative which meant that that could be "safely
eliminated" as a cause of the appellant's Parkinson's
disease. Next, in order to answer the question as to whether
Agent Orange caused the appellant's Parkinson's disease, the
examiner noted that an extensive three-day literature review
was conducted. The examiner listed numerous medical articles
which addressed the relationship between herbicide agents and
neurological disorders, including Parkinson's disease.
Following a review of the medical literature obtained, the
examiner opined that it was at least as likely as not that
the appellant's Parkinson's disease may be related to
exposure to Agent Orange or other herbicide exposure in
A private medical statement from Joel C. Morgenlander, M.D.,
Associate Professor of Medicine (Neurology), dated in October
2004, shows that at that time, Dr. Morgenlander stated that
he had first seen the appellant in October 2001 and had
diagnosed him with probable Parkinson's disease. According
to Dr. Morgenlander, the appellant's symptoms began in
approximately 2000 or 2001.
In February 2004, the Board referred this case for a medical
opinion from a VHA medical doctor with the necessary
expertise in the treatment of Parkinson's disease. The Board
noted that due to the appellant's service in the Republic of
Vietnam during the Vietnam era, he was presumed to have been
exposed to herbicide agents, including Agent Orange, during
his period of active military service. Thus, the Board
requested that the VHA physician, after reviewing the
appellant's claims file, offer an opinion with respect to the
following question: Whether it was at least as likely as not
that the appellant's Parkinson's disease was related to his
period of military service, to specifically include his
presumed exposure to herbicide, including Agent Orange, while
A VHA opinion from the Chief, Neurology Service, was provided
on March 30, 2005. In the opinion, the VHA neurologist
stated that the 2002 Update "Veterans and Agent Orange"
published by the Institute of Medicine summarized several
epidemiologic studies, most of which suggested a mildly
increased risk of Parkinson's disease in individuals "with
many years of occupational exposure" to herbicides or
pesticides. According to the VHA neurologist, no particular
association had been demonstrated for any single chemical or
class of compounds, and no association with exposure to
"2,4-D, 2,4,5-T, or TCDD" had been published. The VHA
neurologist stated that the Institute of Medicine concluded
that although an etiologic connection between
pesticide/herbicide exposure was "biologically plausible,"
there was insufficient evidence at present to support a
definite association between Parkinson's disease and "2,4-D,
2,4,5-T, or TCDD." According to the VHA neurologist, to his
knowledge, since the 2002 Update from the Institute of
Medicine, there had been no more recent epidemiologic or
biochemical studies indicating a definite association between
Parkinson's disease and "2,4-D, 2,4,5-T, or TCDD." Thus,
in reviewing the appellant's medical
records, the VHA neurologist stated that he did not find any
details of the appellant's particular military service or of
his neurologic condition to lead to any conclusion different
from that of the Institute of Medicine, namely that there was
no definite etiologic link between Agent Orange exposure and
subsequent Parkinson's disease.
The law provides that service connection may be established
for chronic disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1110;
38 C.F.R. § 3.303. In addition, service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
The Board notes that a change in the law has taken place with
respect to the adjudication of claims based upon exposure to
Agent Orange during service in Vietnam. On December 27,
2001, the Veterans Education and Benefits Expansion Act of
2001 (VEBEA), Pub. L. No. 107-113, 115 Stat. 976 (2001) was
signed into law. That new statute, in pertinent part,
redesignated and amended 38 U.S.C.A. § 1116(f) to provide
that, for purposes of establishing service connection for a
disability or death resulting from exposure to an herbicide
agent, including a presumption of service connection under
this section, a veteran who, during active military, naval,
or air service, served in Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975, shall be
presumed to have been exposed during such service to an
herbicide agent of the kind specified in section 1116, unless
there is affirmative evidence to establish that the veteran
was not exposed to any such agent during that service. See
38 U.S.C.A. § 1116 (West 2002).
If a veteran was exposed to an herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38
U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met,
even though there is no record of such disease during
service, provided further that the rebuttable presumption
provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are
also satisfied: chloracne or other acneform disease
consistent with chloracne; type II diabetes mellitus;
Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma;
acute and subacute peripheral neuropathy; porphyria cutanea
tarda (PCT); prostate cancer; respiratory cancers (cancer of
the lung, bronchus, larynx, or trachea); and soft-tissue
sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2004); see
also 38 U.S.C.A. § 1113 (West 2002); 38 C.F.R. § 3.307
VA has determined that a presumption of service connection
based on exposure to herbicides used in the Republic of
Vietnam during the Vietnam era is not warranted for any
condition for which VA has not specifically determined a
presumption of service connection is warranted. See 59 Fed.
Reg. 341-46 (1994); 61 Fed. Reg. 414421 (1996); see also 64
Fed. Reg. 59232 (1999); 67 Fed. Reg. 42600-42608 (2002).
More recently, VA clarified that a presumption of service
connection based on exposure to herbicides used in the
Republic of Vietnam during the Vietnam Era is not warranted
for the following conditions: hepatobiliary cancers,
nasopharyngeal cancer, bone and joint cancer, breast cancer,
cancers of the female reproductive system, urinary bladder
cancer, renal cancer, testicular cancer, leukemia (other than
CLL), abnormal sperm parameters and infertility, Parkinson's
disease and parkinsonism, amyotrophic lateral sclerosis
(ALS), chronic persistent peripheral neuropathy, lipid and
lipoprotein disorders, gastrointestinal and digestive
disease, immune system disorders, circulatory disorders,
respiratory disorders (other than certain respiratory
cancers), skin cancer, cognitive and neuropsychiatric
effects, gastrointestinal tract tumors, brain tumors, light
chain-associated (AL) amyloidosis, endometriosis, adverse
effects on thyroid homeostasis, and any other condition for
which the Secretary has not specifically determined a
presumption of service connection is warranted. See 68 Fed.
Reg. 27,630-41 (May 20, 2003).
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit has determined that the
Veterans' Dioxin and Radiation Exposure Compensation
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, §
5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a
veteran from establishing service connection with proof of
actual direct causation. Combee v. Brown, 34 F.3d 1039
(Fed.Cir. 1994). The United States Court of Appeals for
Veterans Claims (Court) has specifically held that the
provisions of Combee are applicable in cases involving Agent
Orange exposure. McCartt v. West, 12 Vet. App. 164, 167
Following consideration of the evidence of record, the Board
finds that entitlement to service connection for Parkinson's
disease is warranted. Initially, it is noted that the
appellant's DD 214 confirms that the appellant had active
service in Vietnam during the Vietnam era. Therefore, the
appellant is presumed to have been exposed to herbicides in
service. 38 U.S.C.A. § 1116(f). However, the Board also
observes that Parkinson's disease is not among the
disabilities listed in 38 C.F.R. § 3.309(e). Thus, the
appellant may not receive the benefit of a rebuttable
presumption that his Parkinson's disease was caused by
exposure to Agent Orange. 38 C.F.R. §§ 3.307, 3.309 (2004).
Nevertheless, as indicated above, the appellant is not
precluded from establishing service connection on a direct
basis. See Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994);
McCartt v. West, 12 Vet. App. 164, 167 (1999).
Upon a review of the evidence of record, the evidence taken
as a whole tends toward the conclusion that the appellant's
Parkinson's disease was caused by his herbicide exposure
while in service. The Board recognizes that, as previously
stated, in Fast Letter 03-20, issued by the Veterans Benefits
Administration on June 25, 2003, it was noted that a study by
the National Academy of Sciences study found that the
credible evidence against an association between herbicide
exposure and Parkinson's disease outweighed the credible
evidence for such an association. However, in support of the
appellant's contention that his Parkinson's disease was due
to his exposure to Agent Orange while he was serving in the
Republic of Vietnam, the appellant has submitted a private
medical statement from Dr. Muther, dated in June 2002. In
the June 2002 statement, Dr. Muther indicated that no
explanation for the appellant's diagnosed Parkinson's disease
had been found "except a possible exposure to Agent Orange." Dr. Muther
further noted that Agent Orange had been demonstrated to be a
neurotoxin, and, as such, he opined that it was highly
possible that that was a contributing factor in the etiology
of the appellant's Parkinson's disease. In addition, in the
appellant's August 2004 VA examination, the examiner stated
that although it was possible that the appellant was exposed
to lead based paints due to his occupation of remodeling
rental homes, in light of the fact that the appellant's heavy
metal screens came back negative, such exposure could be
"safely eliminated" as a cause of the appellant's
Parkinson's disease. Moreover, following a review of
pertinent medical literature, the examiner opined that it was
"at least as likely as not" that the appellant's
Parkinson's disease may be related to exposure to Agent
Orange or other herbicide exposure in Vietnam. Furthermore,
in the March 2005 opinion from the VHA neurologist, although
he stated that his conclusion was no different from that of
the Institute of Medicine, namely that there was no definite
etiologic link between Agent Orange exposure and subsequent
Parkinson's disease, the VHA neurologist also noted that the
Institute of Medicine had concluded that an etiologic
connection between pesticide/herbicide exposure was
The medical opinions in this case are less than absolute in
their conclusions. However, given the nature of cases such
as this one, in which most causes of the claimed disability
are idiopathic and the passage of a significant amount of
time between separation from service and the filing of a
claim with VA, and the fact that medicine is still a somewhat
inexact science, the Board must resign itself to dealing with
medical opinion evidence couched in terms such as "highly
possible," "at least as likely as not," and "biologically
plausible," rather than absolutes. See Lathan v. Brown, 7
Vet. App. 359, 366 (1995) (medicine is more art than exact
science). Although none of the medical opinions of record
are couched in terms of absolute certainty, none have to be.
In any event, the standard of review which must be applied by
the Board is found in 38 U.S.C.A. § 5107(b). Under the
benefit-of-the-doubt rule, in order for a claimant
to prevail, there need not be a preponderance of the evidence
in the veteran's favor, but only an approximate balance of
the positive and negative evidence. In other words, the
preponderance of the evidence must be against the claim for
the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App.
49, 54 (1990). Thus, in consideration of the aforementioned
evidence, the Board finds that the evidence for and against
the appellant's claim for service connection for Parkinson's
disease is in a state of relative equipoise. With reasonable
doubt resolved in the appellant's favor, the Board concludes
that service connection is warranted.
Entitlement to service connection for Parkinson's disease is
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs