BVA9504899 DOCKET NO. 88-48 257 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of exposure to Agent Orange, to include respiratory disease, skin rash, a liver disorder, memory loss/an acquired psychiatric disorder, a back disorder, and a muscle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from July 1967 to March 1969. In a June 1990 appellate decision, the Board denied entitlement to service connection for PTSD, a back disability and a muscle disorder. At the same time as that June 1990 appellate decision, the Board remanded the appellant's claim of entitlement to residuals of exposure to Agent Orange in order to permit the RO to consider the claim when new regulations had been promulgated. That claim is once again before the Board for appellate consideration. Because the previous Board decision in June 1990 denied service connection for a back disorder and a muscle disorder on a direct basis, and the appellant now includes them on his list of disabilities claimed as residuals of his exposure to Agent Orange in Vietnam, those disabilities will be addressed in this decision as to whether service connection may be grant for them as residuals of Agent Orange exposure. This appeal comes before the Board of Veterans' Appeals (Board) from a May 1987 rating decision by the Department of Veterans Affairs (VA) Roanoke, Virginia, Regional Office (RO), which denied entitlement to service connection for residuals of exposure to Agent Orange, to include skin rash, memory loss, liver condition, and respiratory disease. This appeal also arises from a rating decision by the RO in April 1988, which denied service connection for residuals of exposure to Agent Orange, to include back disability and a muscle disorder, a November 1991 rating decision that denied service connection for PTSD on the basis that no new and material evidence had been presented to reopen a claim for that disorder, and a May 1994 rating decision that denied service connection for an acquired psychiatric disorder as being a residual of Agent Orange exposure. Although the appellant has made reference to clear and unmistakable error in the June 1990 appellate decision, the Board notes that the United States Court of Appeals for the Federal Circuit has ruled that final decisions by the Board of Veterans' Appeals are not subject to collateral review as to clear and unmistakable error under 38 C.F.R. § 3.105(a) (1994). Smith v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he was exposed to traumatic, stressful events while stationed in Vietnam that have resulted in the development of PTSD. He also argues that his exposure to herbicide (Agent Orange) in Vietnam has left him with residual disabilities that consist of respiratory disease, skin rash, a liver disorder, memory loss/acquired psychiatric disorder, a back disorder, and a muscle disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has not been submitted to permit reopening of the appellant's claim of entitlement to service connection for PTSD. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is also the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims of entitlement to service connection for respiratory disease, skin rash, a liver disorder, memory loss/acquired psychiatric disorder, a back disorder, and a muscle disorder, as being secondary to Agent Orange exposure, are well-grounded. FINDINGS OF FACT 1. Service connection was denied for PTSD, a back disorder, and a muscle disorder in an appellate decision rendered by the Board in June 1990. 2. The evidence submitted since the June 1990 appellate decision includes a copy of a May 1967 letter from a high school guidance counselor listing the appellant's grades for one semester during the 1960-1961 school year, a copy of the appellant's police record showing four offenses prior to service and several since 1972, the transcript of the appellant's testimony at his December 1993 personal hearing, and copies of medical records from a Department of Corrections that show treatment for various disabilities between 1990 and 1992. 3. The additional evidence submitted since the June 1990 appellate decision, when considered in the context of all the evidence of record, does not raise a reasonable possibility that the appellant has PTSD as a result of his service in Vietnam. 4. Although there is medical evidence of record showing the manifestations of respiratory disability, skin problems, liver disorder, psychiatric problems, back disability and myopathy many years after the appellant's separation from service, no objective evidence has been submitted which demonstrates that any of these disorders is related to service, or is due to any in-service occurrence or event, including Agent Orange exposure. CONCLUSIONS OF LAW 1. The evidence received by the Board since the June 1990 appellate decision that denied service connection for PTSD is not new and material, and the claim for that benefit is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1105 (1994). 2. The appellant has not submitted a well-grounded claim for service connection for respiratory disease, skin rash, a liver disorder, memory loss/acquired psychiatric disorder, a back disorder, or a muscle disorder, secondary to Agent Orange exposure. 38 U.S.C.A. §§ 1110, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110 (West 1991). I. PTSD In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim for entitlement to service connection for PTSD. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. In a June 1990 appellate decision, the Board denied entitlement to service connection for PTSD. Except as provided in 38 C.F.R. § 5108 (West 1991), when a claim is disallowed by the Board, the claim may not be thereafter reopened unless new and material evidence is presented with respect to the claim. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1105 (1994). When a veteran seeks to reopen a previously denied claim based upon new evidence, a two-step analysis is required. The first step is to determine if the evidence is new and material; if so, the case is reopened and the merits of the claim must be evaluated on the basis of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1994). To justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all of the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). If new and material evidence has not been submitted, the Board does not need to address the merits of the claim. Sanchez v. Derwinski, 2 Vet.App. 330 (1992). For the limited purpose of determining whether to reopen a claim, the Board must accept the new evidence as credible and entitled to full weight. Justus v. Principi, 3 Vet.App. 510 (1992). This presumption no longer attaches in the adjudication that follows reopening. Id. The evidence that was considered by the Board at the time of its June 1990 appellate decision that denied service connection for PTSD included the appellant's service medical and personnel records which did not indicate any complaint or finding of a psychiatric problem, and did not show that the appellant was exposed to any stressful events while in service. The Board, in June 1990, also considered private and VA medical records dated from 1980 to 1987. Those medical records included reports of treatment and evaluation of the appellant by VA physicians and psychologists in 1986 and 1987 for psychiatric problems that were diagnosed as PTSD. Also of record in June 1990 were several statements from acquaintances of the appellant that described how his personality and behavior had changed since returning from military service. The Board concluded in its June 1990 appellate decision that there was a lack of credibility as to the history of events in Vietnam as provided by the appellant, particularly as to the stressors to which he claimed exposure in Vietnam. The Board determined that the diagnosis of PTSD was therefore unacceptable and denied service connection for PTSD. The evidence submitted since the June 1990 appellate decision includes the following: duplicate copies of the appellant's service personnel records; a reply letter from the U.S. Army and Joint Services Environmental Support Group (ESG), dated February 28, 1992, to the Virginia Department of Veterans Affairs, indicating the type of information needed by ESG to provide research with regards to a claim for PTSD (followed by a copy of a letter from the RO to the appellant requesting him to provide more detailed accounts of the stressful events/combat actions he experienced in Vietnam so that ESG would have more complete information with which to research the appellant's claim); the appellant's testimony at a December 1992 personal hearing in which he described his psychiatric problems since service; a copy of a May 1967 letter from a high school guidance counselor listing the appellant's grades for one semester during the 1960- 1961 school year; a copy of the appellant's police record showing four offenses prior to service and several since 1972; and copies of medical records from the Virginia Department of Corrections showing treatment for various disabilities between 1990 and 1992. After a review of the record, the Board concludes that, although much of the evidence submitted since the June 1990 appellate decision became final is new, in that it was not previously of record, it is not "material" evidence because it is not relevant and probative of the issues at hand, in that it does not indicate that the appellant developed PTSD as a result of his service in Vietnam. "Material" evidence must be of sufficient weight or significance (assuming its credibility, see generally, Justus v. Principi, Vet.App. 510, 513 (1992)) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). Although the appellant maintains that he experienced traumatic events during service in Vietnam that led to the development of PTSD and argues that he should be granted service connection for PTSD on the basis of the diagnoses listed in the 1986 and 1987 VA medical records, the record fails to show that he has presented credible evidence that would support a diagnosis of PTSD. Police records and high school grades do not tend to show PTSD related to military service. The Board notes that a request for more detailed information pertaining to the alleged stressful events in Vietnam did not produce any helpful evidence. While we do not doubt that the appellant is sincere in his belief that he has PTSD, he is not qualified to offer such an opinion. See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992) (A lay person is not qualified to make medical diagnoses). As the evidence submitted since the June 1990 appellate decision, including the hearing testimony, does not present a reasonable possibility that the outcome of the June 1990 appellate decision would be changed, the Board finds that it does not constitute new and material evidence so as to permit reopening of the claim of entitlement to service connection for PTSD. II. Residuals of Agent Orange Exposure A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (1994) will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 38 C.F.R. § 3.309(a) (1994) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991); 38 C.F.R. § 3.307(a) (1994). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) (1994) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1994) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Non-Hodgkin's lymphoma; Porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1994). The threshold question to be answered at the outset of the analysis of any issue is whether a well-grounded claim has been submitted; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A veteran has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). If a particular claim is not well-grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where such assertions are inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the evidentiary assertions with regard to the appellant's claims of entitlement to service connection for respiratory disease, skin rash, a liver disorder, memory loss/an acquired psychiatric disorder, a back disorder, and a muscle disorder, secondary to Agent Orange exposure, are inherently incredible when viewed in the context of the total record. The appellant's service medical records show no complaint or finding pertaining to respiratory disease, skin rash, a liver disorder, memory loss/an acquired psychiatric disorder, or a muscle disorder. Those records do show that the appellant reported having experienced back pain with muscle spasms since the age of 12 or 13. As noted above, to establish service connection there needs to be a showing that the disabilities for which service connection is sought are, in some way, related to service. No such showing has been made as to the appellant's respiratory disease, skin rash, a liver disorder, memory loss/an acquired psychiatric disorder, a back disorder, and a muscle disorder. There is nothing in the clinical evidence that shows the presence of respiratory disease, skin rash, a liver disorder, memory loss/an acquired psychiatric disorder, or a muscle disorder during service or for many years following the appellant's separation from service, or that suggests any of these disabilities are etiologically related to any in-service- connected incident, including Agent Orange exposure. See Rabideau v. Derwinski. 2 Vet.App. 141 (1992). Therefore, even though the medical evidence shows that the appellant has received treatment for respiratory disease, a skin rash, a liver disorder, memory loss/an acquired psychiatric disorder, a back disorder, and a muscle disorder at various times in the 1980's and 1990's, there is no objective evidence of medical causality from any incident in service or any service- connected disability, and as such, those claims are not well- grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994). The appellant lacks medical expertise and is not qualified to render an opinion regarding a causal relationship between his respiratory disease, skin rash, a liver disorder, memory loss/an acquired psychiatric disorder, a back disorder, and a muscle disorder and any claimed in-service onset. See Espiritu v. Derwinski 2 Vet.App. 492 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93, (1993). Where the determination issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Id. Where there is no medical evidence of the claimed disorder during service, where there is no medical evidence linking the claimed disorder to service or to an in-service event or occurrence, or where the disorder is 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). The United States Court of Veterans Appeals (Court) has expressed its concern that, in a situation in which the claim is not well- grounded, a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because such reopening would require the submission of new and material evidence. The Court has deemed it appropriate, where a decision was made on the merits with respect to a claim that was not well-grounded, to recognize the nullity of the prior decision and allow the appellant to begin, if he can, on a clean slate. Grottveit v. Brown, 5 Vet.App. at 93 (1993). In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994) not attach to the rating decisions of May 1, 1987, and April 27, 1988. ORDER New and material evidence not having been submitted to reopen a claim for entitlement to service connection for PTSD, that benefit remains denied. Having found the claims of entitlement to service connection for respiratory disease, skin rash, a liver disorder, memory loss/acquired psychiatric disorder, a back disorder, or a muscle disorder, secondary to Agent Orange exposure, to be not well- grounded, the appeal is dismissed, and the rating actions of May 1, 1987, and April 27, 1988, pertaining to those issues, is vacated. 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 so assigned. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue that was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.