BVA9507846 DOCKET NO. 93-09 457 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an ulcer condition with gastritis. 2. Entitlement to service connection for a lung condition secondary to exposure to Agent Orange. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from February 1968 to January 1970. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an April 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida, that denied the veteran's claim for entitlement to service connection for a lung condition and an ulcer condition with gastritis. REMAND The veteran contends that while he was in service, he experienced stomach discomfort for which he received treatment. He maintains that this problem has developed into an ulcer, from which he now suffers. In his substantive appeal, the veteran contended that he developed a lung disorder due to exposure to Agent Orange in Vietnam. It is unclear whether he believes he has a gastrointestinal disorder related to Agent Orange. The RO has not considered the veteran's claim relative to Agent Orange exposure. A review of the claims folder indicates that the veteran has not received a VA Compensation and Pension Examination to ascertain whether any gastrointestinal or lung disability is present. While the service medical records do not show a chronic gastrointestinal or respiratory disorder, the veteran was treated for pneumonia in April 1990, at which time a chest X-ray revealed a soft tissue density overlying the chest wall of uncertain etiology. The record shows that the veteran indicated that he was told by a doctor that he had cancer. The Board notes that regulations promulgated in 1994 concerning disabilities due to Agent Orange provide for a presumption of service incurrence when a veteran was exposed to Agent Orange and develops respiratory cancer. See 38 C.F.R. § 3.307(a)(6)(ii), 3.309(e) (1994). The Secretary has a duty to assist a claimant who has submitted a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991); Butts v. Brown, 5 Vet.App. 532 (1993); Murphy v. Derwinski, 1 Vet.App. 78 (1990); 38 C.F.R. § 3.159 (1993). "The 'duty to assist' is neither optional nor discretionary." Littke v. Derwinski, 1 Vet.App. 80 (1990). The Court has repeatedly held that the duty to assist includes providing a thorough and contemporaneous medical examinations, especially where it is necessary to determine the current level of a disability. Schroeder v. Brown, 6 Vet.App. 220 (1994). In conjunction with the veteran's contentions, a brief review of the record to date indicates that these claims may not be well- grounded. In Murphy v. Derwinski, 1 Vet.App. 78 (1990), the Court of Veterans Appeals (Court) has stated that a well-grounded claim is one that is plausible and meritorious. Where the service medical records do not show the claimed disability during service and where there is no medical evidence to link a current disability with events in service or with a service-connected disability, or where the disorders are not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). When a claim is found to be not well-grounded, it should be dismissed. When a claim is thus dismissed, the veteran is, in effect, put on notice that the claim is defective. However, he is not penalized in that no denial of his claim is made by the Board. The veteran may submit additional evidence that would make his claim plausible and, because there is no final denial by the Board on record, he is not required to reopen the claim. The Court is concerned that VA not expend time and money in processing implausible claims. See Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993). During the remand process, the RO should consider whether the veteran has submitted well-grounded claims. Accordingly, this case is REMANDED to the RO for the following actions: 1. The veteran is to be afforded a special pulmonary examination to determine the nature and extent of any lung condition shown to be present. If such disability is shown, the examiner is requested to express an opinion as to its etiology, taking into considering the veteran's presumed exposure to Agent Orange during service. All indicated special studies should be accomplished and the examiner should set forth reasoning underlying the final diagnosis. The claims folder and this Remand are to be made available to the examiner for review prior to the examination. 2. The veteran is to be afforded a special gastrointestinal examination to determine the nature and extent of any ulcer or gastrointestinal disorder which may be present. All indicated special studies should be accomplished and the examiner should set forth reasoning underlying the final diagnosis. The RO should request that the examiner express an opinion as to the etiology of an gastrointestinal disorder shown, taking into account the record showing a history of chronic alcohol abuse. The claims folder and this Remand are to be made available to the examiner for review prior to the examination. Following completion of the requested development, the veteran's claim should be readjudicated. If a claim relating a disability to exposure to Agent Orange is found to be well-grounded, then the RO should consider it according to the final regulations pertaining to Agent Orange exposure, promulgated in February 1994 by the Secretary of VA. If the decision remains unfavorable, the veteran and his representative should be given a supplemental statement of the case and allowed sufficient time for a response. Thereafter, the claim should be returned to the Board for further consideration. No action is required of the veteran until he is contacted by the RO. The purpose of this REMAND is to ensure due process and to obtain additional clarifying medical evidence. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).