Citation Nr: 0006504 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-10 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for chloracne, as a result of exposure to herbicide agents. 2. Entitlement to service connection for soft tissue carcinoma, as a result of exposure to herbicide agents. 3. Entitlement to service connection for breathing problems, as a result of exposure to herbicide agents. 4. Entitlement to service connection for circulatory problems, as a result of exposure to herbicide agents. 5. Entitlement to service connection for neurological problems, as a result of exposure to herbicides. 6. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, appellant's wife, appellant's daughter ATTORNEY FOR THE BOARD D. P. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to October 1969. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veteran Affairs (VA), in which the RO denied service connection for chloracne, soft tissue carcinoma, breathing problems, circulatory problems and nerve problems, all claimed as due to herbicide exposure, and for PTSD. FINDINGS OF FACT 1. The record does not contain competent evidence of a current chloracne disability based on medical diagnosis. 2. The record does not contain competent evidence of a current soft tissue carcinoma disability based on medical diagnosis. 3. The record does not contain competent evidence of a current respiratory disability based on medical diagnosis. 4. The record does not contain competent evidence of a current circulatory disability based on medical diagnosis. 5. The record does not contain competent evidence of a current neurological disability based on medical diagnosis. 6. An October 1999 psychiatric evaluation by Bob Winston, M.D., and a January 2000 VA psychiatric evaluation, each resulted in a diagnosis of PTSD. 7. The veteran has submitted statements describing his combat experiences during the Vietnam War, which included being involve in fire fights with the enemy, transporting wounded soldiers, and seeing many dead enemy soldiers. 8. The October 1999 PTSD diagnosis from Dr. Winston, as well as the January 2000 VA examiner's PTSD diagnosis, were based, in part, on the veteran's detailed history of combat related stressors during the Vietnam War. CONCLUSIONS OF LAW 1. The claim for service connection for chloracne due to herbicide exposure is not well grounded. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The claim for service connection for soft tissue carcinoma due to herbicide exposure is not well grounded. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 3. The claim for service connection for breathing problems due to herbicide exposure is not well grounded. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 4. The claim for service connection for circulatory problems due to herbicide exposure is not well grounded. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 5. The claim for service connection for neurological problems due to herbicide exposure is not well grounded. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 6. The claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Agent Orange exposure claims The threshold question that must be resolved regarding any given claim is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. If he or she has not, the appeal fails as to that claim, and the Board is under no duty to assist him or her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter the Court) has held that a well grounded claim is comprised of three specific elements: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability, as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). In the absence of any one of these three elements, the claim is not plausible, and the Board must find that the claim for service connection is not well grounded and therefore must be denied, pursuant to the decision of the Court in Edenfield v. Brown, 8 Vet. App. 384 (1995). As discussed below, the veteran has failed to submit a well- grounded claim on any of the Agent Orange exposure issues before the Board. The Court has held that when a claimant fails to submit a well grounded claim under 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence required to complete his or her application, in circumstances in which the claimant has referenced other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App. 341 (1996). In this case, the Board finds that this procedural consideration has been satisfied. In particular, the Board notes that the statement of the case advises the veteran that there is no evidence of a current diagnosed chloracne, soft tissue carcinoma, respiratory, circulatory or neurological condition. Moreover, unlike the situation in Robinette, he has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make any of his claims on appeal well grounded. a. chloracne The Board first considers whether there is evidence of a current chloracne disability. As part of the veteran's September 1997 VA examination, the veteran stated that he had a skin problem that began two years previously on his scrotum. His subjective complaint was an itching scrotum. Upon examination, there was no evidence of any lesions, nervous manifestations, or any skin disorder. In fact, the diagnosis was "no skin disorder". The Board notes that VA outpatient treatment records from September 1996 reveal a diagnosed dermatitis condition of the ear and face, as well as outpatient treatment records from December 1997 that reveal further complaints of a groin rash and superficial rashes on his face and neck. The examiner diagnosed the condition as an external otitis. However, there is no diagnosis of a chloracne condition in these VA outpatient records or in any other records on file. Furthermore, the veteran admitted during his VA Travel Board hearing that he does not have evidence of a diagnosed chloracne condition. While the Board recognizes that the veteran's claims file shows a history of skin problems, there is no evidence of a currently diagnosed chloracne condition, or any "other acneform disease consistent with chloracne". 38 C.F.R. § 3.309(e). Thus, the presumptive service connection regulations found in 38 C.F.R. §§ 3.307 and 3.309 are inapplicable to this appeal. The Board finds that veteran's claim for service connection for chloracne due to herbicide exposure is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); see Caluza, supra. b. soft tissue carcinoma The Board looks to evidence of a current soft tissue carcinoma disability, and finds that no such evidence exists. The September 1997 VA examination revealed no problems with the digestive system except for a subcutaneous lipoma just below the xiphoid in the right lower quadrant that is fully moveable. The lymphatic and hemic, genitourinary and endocrine systems were also normal. The diagnosis was "no physical disease". There is no evidence from this examination that indicates the presence of a soft tissue carcinoma. The veteran admitted during his July 1999 Travel Board hearing that he does not have a currently diagnosed soft tissue carcinoma condition. Thus, without an existing soft tissue carcinoma condition, the presumptive service connection regulations found in 38 C.F.R. §§ 3.307 and 3.309 are inapplicable to this appeal. As the veteran has presented no competent evidence of a currently diagnosed soft tissue carcinoma disability, his service connection claim for this condition due to exposure to herbicide agents is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza, 7 Vet. App. at 506. c. breathing problems As for evidence of a current breathing disability, the September 1997 VA examination revealed normal nose, sinuses, mouth and throat. A trachea and bronchi examination revealed that the veteran complained of shortness of breath, even at rest. Upon examination, there was no evidence of cor pulmonale, asthma, cyanosis or clubbing of extremities, productive cough or sputum, or infectious disease. A chest X-ray and pulmonary function tests were normal. The diagnosis was "no disease of the trachea/bronchi or respiratory system." While the Board acknowledges that the veteran uses a nebulizer and inhaler for his shortness of breath, as he described in his June 1998 Appeal to the Board (VA Form 9) and as presented during his Travel Board hearing by his wife and daughter, this evidence falls short of the requirement of a specifically diagnosed respiratory disability, as provided by a competent medical authority. Therefore, despite the veteran's complaints of shortness of breath, there is no currently diagnosed respiratory condition. Thus, without an existing respiratory condition, specifically respiratory cancer, the presumptive service connection regulations found in 38 C.F.R. §§ 3.307 and 3.309 are inapplicable to this appeal. As the veteran has presented no competent evidence of a currently diagnosed respiratory disability, his service connection claim for this condition due to exposure to herbicide agents is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza, 7 Vet. App. at 506. d. circulatory problems Regarding a current circulatory disability, the veteran complains that he has poor circulation. During his Travel Board hearing, his wife and daughter described how the veteran will get cold hands and feet and loss of color in his feet, often associated with incidents of sleep disturbances and psychiatric problems. They explained how the veteran underwent circulatory tests but no disability was found. As part of his September 1997 VA examination, the veteran's cardiovascular system was found to be normal, even though the veteran complained that "his vessels need to be warmed up" and that his circulation is poor. A review of the entire record does not reveal any evidence of a diagnosed circulatory disability. The veteran's circulation complaints, while not disputed by the Board, do not satisfy the requirement of a diagnosed medical condition from a competent medical authority. Thus, as the veteran has presented no competent evidence of a currently diagnosed circulatory disability, his service connection claim for this condition due to exposure to herbicide agents is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza, 7 Vet. App. at 506. e. neurological problems As for evidence of a current disability, the veteran complains of "nerve problems", without further clarification. The Board will address the existence of any current neurological disorder, and not address the issue as a psychiatric "nervous condition", as the following section dealing with the veteran's PTSD claim encompasses this type of claim. The September 1997 VA examination report indicates that the veteran's neurological system is normal. As previously stated, the diagnosis from this examination was "no physical disease". A review of the record does not find any evidence of any specific neurological problems, let alone a confirmed diagnosis of a neurological condition. Thus, as the veteran has presented no competent evidence of a currently diagnosed neurological disability, his service connection claim for this condition due to exposure to herbicide agents is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza, 7 Vet. App. at 506. II. PTSD In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals, hereinafter the Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. The Board first looks for evidence of a current disability, based on a medical diagnosis. An October 1999 psychiatric evaluation conducted at Acadiana Partial Hospital by Bob Winston, M.D. included a detailed report of the veteran's account of combat service during the Vietnam War. Dr. Winston examined the veteran and, using criteria from the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed., revised, 1994), or DSM- IV, concluded, that the veteran had a diagnosed PTSD condition. Furthermore, a January 2000 VA Mental Health Clinic psychiatric evaluation resulted in a diagnosis of severe PTSD. As for evidence of the incurrence or aggravation of a disease or injury during active military service, the Board finds that this element also has been satisfied. For PTSD claims, lay evidence of an inservice stressor is the equivalent of inservice incurrence or aggravation of a disease. See Cohen v. Brown, 10 Vet. App. 128, 137 (1997). Furthermore, lay evidence is presumed to be credible for purposes of a well grounded claim. See Robinette v. Brown, 8 Vet. App. 69, 75- 76 (1995). In this case, the veteran has detailed his combat history to Dr. Winston as part of his October 1999 psychiatric evaluation, as well as in numerous statements submitted to VA since his initial PTSD claim in August 1997. In essence, the veteran has described several occasions during the Vietnam War when he came under small arms and mortar fire, as well as being involved in fire fights with the Vietcong, and finding dead bodies while on listening posts. The veteran also explained that he helped transport wounded soldiers to medical facilities. Finally, the Board finds that the evidence reveals competent medical nexus evidence concerning his PTSD condition. Dr. Winston's October 1999 report includes a detailed history of the veteran's account of combat related stressors as the basis of his PTSD diagnosis. Additionally, the January 2000 VA psychiatric evaluation references a similar history of Vietnam-related stressors. ORDER Entitlement to service connection for chloracne, soft tissue carcinoma, breathing problems, circulatory problems, and neurological problems, all claimed as a result of exposure to herbicide agents, is denied. The claim of entitlement to service connection for PTSD is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for PTSD is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board has reviewed the records and finds that additional development is necessary before appellate action may be completed on the veteran's PTSD claim. In particular, the Board notes that the veteran described the duties he performed while on active service in Vietnam, including the transportation of wounded soldiers, manning of machineguns during motorized convoys, participating in listening posts that brought him under crossfire, and seeing many dead enemy soldiers on defensive perimeters. However, the Board is mindful of the fact that service connection for PTSD requires, among other things, credible supporting evidence that the claimed inservice stressor actually occurred. See 38 C.F.R. § 3.304(f). Unless the stressors are combat related, the veteran's account is not sufficient to satisfy this PTSD service connection element. See Cohen v. Brown, 10 Vet. App. 128, 142-150 (1997). The Board notes that the veteran's service records indicate that he worked as a heavy truck driver, with no specific documented evidence of combat service or combat citations and awards. However, he did receive the Vietnam Campaign Medal in addition to the Vietnam Service Medal. The Board notes that the RO has not previously submitted information regarding his alleged stressors to the U.S. Armed Services Center for Research of Unit Records (USASCRUR) (formerly known as the U.S. Army & Joint Services Environmental Support Group (ESG)). The Board highlights the RO's duties to fulfill its obligations to develop stressor information provided by the veteran. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to this claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following actions: 1. The RO should seek verification of the stressors reported by the veteran. If necessary, the veteran should be requested to provide more specific information concerning the claimed stressors described previously. The veteran should be advised that he must provide specific information concerning the events, dates, places, persons involved, and units involved for a meaningful search for, and verification of, stressor information. Information should be forwarded to the USASCRUR for verification of the events claimed as stressors by the veteran. If the record does not contain adequate information to refer to the USASCRUR for stressor verification, the reason for the failure to refer the matter should be noted in the record. 2. The RO should review the claim for service connection for PTSD. The RO should also include the additional evidence submitted by the veteran since the certification of his appeal. If the decision remains adverse to the appellant in any respect, he and his representative should be furnished with a supplemental statement of the case, and with a reasonable period of time within which to respond thereto. The case should thereafter be returned to the Board for further consideration, as warranted. The veteran need take no action until he is so informed. He may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional evidence. The Board intimates no opinion as to the ultimate outcome of this case. The veteran is hereby notified that it is the veteran's responsibility to cooperate in the development of the case, including to report for an examination if one is scheduled, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (1999); see Wood v. Derwinski, 1 Vet.App. 191, 193 (1991). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MARY GALLAGHER Member, Board of Veterans' Appeals