Citation Nr: 0001429 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-04 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for a skin disorder, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran had active service from April 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1994 determination, issued subsequent to a July 1991 deferred rating decision, rendered by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran service connection for a skin disorder, to include as due to exposure to herbicides. A notice of disagreement (NOD) was received in October 1994, the RO issued a statement of the case (SOC) in December 1994, and a substantive appeal (SA) was received in March 1998. With regard to the timeliness of the substantive appeal, the Board notes that the RO, in a February 12, 1998 letter to the veteran, specifically extended the veteran's time to file an SA until April 12, 1998, on the basis that the RO had sent its April 1994 denial to an incorrect address. The Board also notes that despite the fact that a June 1980 rating decision denied the veteran entitlement to service connection for a skin disorder, and that decision became final under 38 U.S.C.A. § 7105(c), as no appeal with respect to that decision was ever initiated, the June 1980 rating decision did not consider the issue of whether herbicide exposure during service could have resulted in service connection for a skin disorder. It appears that the RO undertook a review of the claim based on a change in the law creating a new avenue for certain Vietnam veterans for establishing service connection for certain disorders, including certain skin disorders. As the underlying claim is one for service connection for skin disability, on any basis, the Board finds that a review of the claim without regard to the new and material evidence analysis normally afforded to requests to reopen prior final decision. See generally Spencer v. Brown, 4 Vet.App. 283 (1993). Further, the Board finds no prejudice to the veteran by undertaking such a review rather than requiring him to present new and material evidence to reopen that part of his claim based on a theory of recovery other than due to herbicide exposure. The Board further observes that in his December 1997 statement in support of claim, the veteran raises the issue of service connection for back strain, and the issue of whether he is entitled to have the compensation due him for PTSD be remitted directly to his children. These issues are hereby referred to the RO for appropriate action. FINDING OF FACT There is no medical evidence demonstrating a nexus or link between the veteran's current skin disorder and service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for a skin disorder, to include as due to herbicide exposure, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The law provides that a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated while in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Moreover, a veteran who served in Vietnam during the period January 9, 1962 through May 7, 1975, will be presumed to have been exposed to certain herbicides, such as Agent Orange, if the veteran suffers from one of the presumptive diseases listed under 38 C.F.R. § 3.309(e). See also 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6); McCartt v. West, 12 Vet. App. 164 (1999). The presumptive diseases include chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). At the outset, however, the Board observes that the threshold question that must be answered in this case is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993). To establish that a claim for service connection is well grounded, a veteran must present a medical diagnosis of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1467-68 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, the United States Court of Appeals for Veterans Claims (Court) has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. The service medical records (SMRs) include the following: a January 1969 treatment record showing the veteran had a rash on his buttocks; an April 1969 physical profile report stating the veteran had psuedofolliculitis barbae; a May 1969 treatment record indicating the veteran had persistent folliculitis; and a May 1969 separation examination report, which does not include any indication that the veteran suffered from psuedofolliculitis barbae, folliculitis, or any other skin rash or disorder. The veteran underwent VA examination in September 1969 for other disorders based on another claim (which did not include any reference to a skin problem). Clinical examination of the skin at that time was reported to be normal. It appears that the first post-service medical evidence of skin problems is a February 1979 private clinical record which shows the veteran had exhibited psoriasis for three weeks. A May 1980 VA examination report states that the veteran complained that he developed a skin rash on his face while serving in Vietnam, and that this rash had progressed to the rest of his body thereafter. The examiner stated that 50 percent of the veteran's body was affected by typical psoriasis. The diagnosis was generalized psoriasis. A December 1985 private psychiatric examination report, prepared by R. G. Crummie, M.D., includes a diagnosis of dermatitis. A November 1991 VA examination report states that the veteran had scaly lesions on his elbows, chest, and left buttock. The diagnosis was psoriasis. The remaining evidence consists of numerous, variously dated written statements submitted by the veteran, certain family members, and acquaintances, in which it is contended that the veteran incurred his current skin disorder in service. After a review of the evidence of record, the Board finds that there is no medical evidence of record showing that the veteran's current skin disorder is related to service, either presumptively, directly, or by chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) and Savage. First, presumptive service connection for a skin disorder on the basis of herbicide exposure is not warranted because the veteran is not shown to have been diagnosed with any of the diseases listed under 38 C.F.R. § 3.309(e). Second, although the SMRs include clinical records showing the veteran was being treated for a skin disorder, variously noted to be a rash, psuedofolliculitis, or folliculitis in January 1969, April 1969, and early May 1969, the veteran's separation examination report at the end of May 1969 was devoid of any indication that the veteran complained of, or was diagnosed with, any skin disorder. Moreover, VA examination in September 1969 showed normal skin. This suggests that the veteran's skin disorder(s) was acute and transitory, and had resolved. The first post-service medical evidence of skin disability is in 1979. In other words, there is no medical evidence of a continuity of symptomatology to link the skin problems noted in 1979 and thereafter to those treated in 1969 during service. Further, the record does not otherwise include any medical opinion suggesting a link to service or linking current skin disability to the continuity of symptoms claimed by the veteran. Savage. The only evidence of record to support the veteran's claim of service connection for a skin disorder, are the written contentions of the veteran, his family, and acquaintances. However, as a matter of law, these statements do not satisfy the medical nexus requirement and cannot, therefore, render his claim well grounded. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that laypersons are not competent to offer medical opinions). In other words, what is needed is medical evidence demonstrating that such disabilities are related to service. By this decision, the Board is informing the veteran that medical evidence of causation is required to render his claim well grounded. 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals