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Court Wins

CCK Successfully Argues Against Board Denial of VA Benefits for Parkinson’s Disease

January 13, 2020

About the Veteran’s Case

The Veteran served on active duty in the United States Air Force from January 1968 until June 1969 as a cook.  He was stationed at Taegu in South Korea.  In 2004 and 2005, the Veteran began experiencing thinking and concentration problems and feeling shaky, lightheaded, and weak.  Several years later, in February 2008, he was diagnosed with Parkinson’s disease.  In April 2010, the Veteran filed a claim for service connection for Parkinson’s disease, stating that he was temporarily deployed to Seoul, Kimpo, and Inchon, where he was housed in huts with local farmers.  The Veteran said that the locals sprayed unknown herbicides and pesticides, “which may have contained Agent Orange,” and that some of his temporary duty stations may have contained storage facilities for Agent Orange.

In November 2014, the Joint Services Records Research center (JSRRC) issued a memorandum indicating that the Department of Defense (DoD) had not identified any Air Force units that were exposed to Agent Orange in South Korea.  Furthermore, the JSRRC noted that the Veteran’s personnel records did not show exposure to any herbicides in service.  The Veteran responded by submitting a January 2015 letter from his private physician, who wrote that “it is likely that Parkinson’s disease may begin many years before the onset of motor symptoms so that exposure and first symptom onset may be decades apart.”  Subsequently, the Veteran attended a Board hearing in April 2017 where he recounted handing herbicides to local farmers and being exposed to such herbicides while living in the huts.  Despite the evidence to support the Veteran’s claim, the Board’s decision was unfavorable.

Board Denies Service Connection for Parkinson’s Disease

In May 2018, the Board denied service connection for Parkinson’s disease, to include as due to herbicide exposure.  In its decision, the Board found that the competent evidence of record did not reflect presumptive or actual exposure to herbicide agents.  The Board noted that though the Veteran stated that he served near the Korean demilitarized zone (DMZ), his unit was not listed as serving near the DMZ.  As such, the Board concluded that the Veteran’s lay statements alone were insufficient to demonstrate service near the DMZ.  Finally, the Board noted that neither the Veteran nor the record suggested that his Parkinson’s disease could be related to an in-service event other than herbicide exposure.

CCK Appeals Denial of Benefits for Parkinson’s Disease to the CAVC

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied service connection for Parkinson’s disease, to include as due to herbicide exposure.  CCK argued that the Board provided an inadequate statement of reasons or bases for finding that the Veteran did not serve near the Korean DMZ and that the Veteran was not otherwise exposed to herbicides.  Additionally, CCK asserted that the Board failed to discuss a theory of direct service connection based on in-service pesticide exposure and failed to ensure that the duty to assist was satisfied.

Court Agrees with CCK, Remands Veteran’s Claim

CCK argued, and the Court agreed, that the Board provided an inadequate explanation of reasons or bases for finding that the Veteran had not been exposed to herbicides while in service.  The Court responded to the Board’s finding that the Veteran’s lay statements were insufficient to establish exposure by stating that lay statements “are competent evidence as to matters within the realm of the individual’s personal knowledge.”  Here, the Board failed to address whether the Veteran’s accounts of in-service exposure were within the realm of his personal knowledge.  As a result, the Court concluded that remand was warranted for the Board to provide an adequate statement of reasons or bases for its finding on the competence of the Veteran’s lay statements.

 

To read the Court’s full decision, click here.