Citation Nr: 0005910 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 94-23 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of Agent Orange exposure, including a skin disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from February 1970 to December 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 1992 rating decision from the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied the veteran's reopened claim for service-connected disability compensation for chloracne or residuals of Agent Orange exposure. In June 1996, the Board remanded the veteran's claim for further adjudication and development as necessary under the current regulations pertaining to herbicide exposure. The Board notes that the veteran has submitted a timely notice of disagreement to the April 1997 rating decision, which denied entitlement to assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) for service- connected post-operative left inguinal hernia. A statement of the case was issued in July 1997. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (1999). A substantive appeal must either indicate that the appeal is being perfected as to all issues addressed in the statement of the case, or must specifically identify the issues appealed. 38 C.F.R. § 20.202 (1999). A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mailed the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b) (1999). Therefore, to timely perfect his appeal, the veteran needed to submit a substantive appeal prior to April 1998. The record contains no substantive appeal on this issue and, therefore, it is not currently before the Board. The veteran also submitted a timely notice of disagreement to the August 1998 rating decision, which denied service connection for depression and/or post-traumatic stress disorder (PTSD). A statement of the case was issued in September 1999. To timely perfect his appeal, the veteran needed to submit a substantive appeal prior to November 1999. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b). The record contains no substantive appeal on this issue and, therefore, it is not currently before the Board. Neither of the above- discussed issues was certified to the Board by the RO for adjudication. FINDINGS OF FACT 1. The record contains no diagnosis of chloracne, or other acneform disease consistent with chloracne, including within one year of last possible exposure to Agent Orange, or any other condition subject to the presumption under 38 C.F.R. § 3.309(e) (1999). 2. The record contains no clear diagnosis of any current or recurrent skin disorder. 3. The record contains no competent medical evidence of a nexus between the veteran's complaints of a recurrent skin disorder and any incident of his military service, including possible exposure to Agent Orange. CONCLUSION OF LAW The claim of entitlement to service connection for residuals of Agent Orange exposure, including a skin disorder, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records contain no complaints, diagnoses or opinions of any skin rash or abnormality. On the veteran's separation medical examination in December 1971, the only noted abnormality of the skin was a birthmark. On a report of medical history, completed at the same time, the veteran reported no history of skin diseases. The veteran's DD Form 214 reported that the veteran served in Vietnam from August 1970 to July 1971 and was awarded the Vietnam Campaign Medal and Vietnam Service Medal. The veteran's service personnel records indicated that he arrived in Vietnam in August 1970, but was a patient at the U.S. Army Hospital at Fort Sill, Oklahoma, beginning in March 1971. The veteran filed an initial claim for VA benefits for chloracne secondary to exposure to Agent Orange in May 1990. A VA examination was scheduled in August 1990, but the veteran failed to report for the scheduled examination. By rating decision in October 1990, the RO denied service connection for residuals of Agent Orange exposure and chloracne, as the record did not contain any current diagnosis of such conditions. The veteran was notified of this decision under cover letter dated in November 1990. A VA examination was conducted in July 1992. The veteran reported exposure to Agent Orange during service in Vietnam and stated that he had a recurrent rash on his right forearm and left upper anterior chest approximately every six months and lasting for six-to-eight weeks. On physical examination, the examiner noted no skin rash. The examiner noted that physical examination of the head, eyes, ears, nose, throat, fundi, neck, chest, lungs, lymph nodes, abdomen, back, extremities, peripheral pulses, external genitalia were normal, as were neurological and rectal examination. The examiner stated that, since there was no skin rash present, no opinion as to chloracne could be made. The examiner further found no evidence of any other condition due to exposure to Agent Orange. A VA Agent Orange registry examination was conducted in November 1992. No abnormalities of the skin were noted. A VA examination was conducted in February 1994. The examiner noted that the veteran's skin was generally clear with clubbing terminally on all fingers. VA outpatient treatment records in March 1994 noted complaints of "Agent Orange rash." A skin eruption was noted on examination. The veteran reported that this condition, usually on the arms and upper chest, had been intermittent for approximately 20 years, occurring one-to-two times per year and lasting one-to-two weeks. The VA physician provided a diagnosis of questionable urticaria. In June 1996, the Board remanded the veteran's claim for further adjudication and development as necessary under the current regulations pertaining to herbicide exposure. At a hearing before an RO hearing officer in February 1999, the veteran testified that he had a recurring rash on his arms due to Agent Orange exposure. Transcript, p. 6. A VA outpatient treatment record in May 1999 noted that the veteran complained of itching over his genitalia. Physical examination showed no rash and the examiner provided an impression of itching with unknown etiology. II. Analysis As an initial matter, the Board notes that the veteran's claim for service connection for Agent Orange exposure and chloracne was denied by RO decision in October 1990. Generally, when a claim is denied by the RO and no timely appeal is filed, the claim may not thereafter be reopened and granted and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105(c) (West 1991). Notwithstanding this final denial, the Board has determined that the current claim for service connection for a skin disorder should be adjudicated on a de novo basis in light of intervening changes in regulations over the years. New regulations governing claims based on exposure to Agent Orange were issued by VA several times during the pendency of the instant appeal. When a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation. Spencer v. Brown, 4 Vet. App. 283, 887 (1993). The applicant's later claim, asserting rights that did not exist at the time of the prior claim, is necessarily a different claim. Spencer v. Brown, 17 F.3d 368, 372 (Fed. Cir. 1994)(quoting Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993)). Thus, because of the change in regulations, the appellant is entitled to a de novo review of his claim for service connection for Agent Orange exposure, including chloracne. Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Vietnam era service is from February 28, 1961 to May 7, 1975, for veterans, who served in the Republic of Vietnam during that time. A veteran who served in Vietnam between January 9, 1962 and May 7, 1975, and has a disease listed under §3.309(e) is presumed to have exposure to a herbicide agent during service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 C.F.R. § 3.307(a)(6)(iii) (1999). The following diseases shall be service-connected, if a veteran was exposed to a herbicide agent during active military, naval, or air service, even though there is no record of such disease during service, provided that the requirements and limitations under § 3.307 are met: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcomas. 38 C.F.R. § 3.309(e) (1999). Chloracne, or other acneform disease consistent with chloracne, must become manifest to a degree of 10 percent or more within a year of the last date on which the veteran was exposed to a herbicide agent. 38 C.F.R. § 3.307(a)(6)(ii) (1999). Furthermore, the Secretary of the VA formally announced in the Federal Register, on January 4, 1994, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for certain conditions, or for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 59 Fed. Reg. 341 (1994). Notwithstanding the foregoing presumption, the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") has held that specific VA regulations which provide for presumptive service connection do not preclude an appellant from establishing service connection with proof of actual, direct causation. Cf. Combee v. Brown, 34 F.3d 1039, 1040 (1995) (presumptive diseases due to radiation exposure). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 U.S.C.A. § 1113(b) (West 1991 & Supp. 1999); 38 C.F.R. § 3.303(d). The threshold question to be answered in the veteran's appeal is whether he has presented evidence of a well-grounded claim. Under the law, a person who submits a claim for benefits shall have 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); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy, 1 Vet. App. 78 (1990). The Federal Circuit held that, "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 [disease or injury] and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) quoting Epps v. Brown, 9 Vet. App. 341, 343-344 (1996); see 38 C.F.R. §§ 3.303, 3.307, 3.309; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, the second and third elements may be satisfied under 38 C.F.R. § 3.303(b) (1998) by: a) Evidence that a condition was "noted" during service or during an applicable presumptive period; b) Evidence showing post-service continuity of symptomatology; and c) Medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 497 (1997). For the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). The record contains no medical diagnosis of chloracne or other acneform disease consistent with chloracne. The only medical evidence of a skin disorder is the outpatient treatment record in March 1994 with a diagnosis of questionable urticaria. The Board notes that, this questionable diagnosis was made well beyond the presumptive period of one year from the date of last exposure. The veteran last served in Vietnam in 1971, more than twenty years before this diagnosis was provided. The record contains no evidence of diagnosis of chloracne, or any of the other enumerated diseases subject to presumptive service connection due to herbicide exposure. Therefore, the presumption under 38 C.F.R. § 3.309(e) is not for application. The veteran reported at the VA examination in July 1992 and at February 1999 hearing that he had a recurrent rash since his service in Vietnam. He stated that the rash occurred approximately every six months and lasted for several weeks. A single notation of this rash was made in March 1994, with a diagnosis of questionable urticaria. The record contains no clear diagnosis of any current or recurrent skin disorder. The veteran's service medical records contain no complaints, diagnoses, or opinions of any skin condition. In addition, the record contains no competent medical evidence providing a nexus between the veteran's current complaints of a recurrent rash, noted by a medical professional only once, and any incident of service, including possible exposure to Agent Orange. Without evidence of a current diagnosis of a skin disorder and competent medical evidence of a nexus between the current skin disorder and any incident of the veteran's military service, the veteran's claim cannot be well grounded. Likewise, under the alternative method of submitting a well- grounded claim, the evidence is insufficient to well ground the veteran's claim. No skin condition was noted during service. Although the veteran has reported a continuity of symptomatology, there is no medical opinion providing a nexus between any current disability and this report of continuity of symptomatology. The Board notes that the veteran has also claimed prostate cancer as a residual of Agent Orange exposure. This claim was addressed separately by the RO by rating decision in December 1999. The RO denied service connection for a history of prostatitis (claimed as prostate cancer). No notice of disagreement has been received on this issue, but the period for receipt of the notice of disagreement has not elapsed. 38 C.F.R. § 20.302(a) (1999). The record contains no evidence of any further disabilities, which are attributed to possible Agent Orange exposure. The Board recognizes that there is no duty to assist in a claim's full development if a well-grounded claim has not been submitted. See Morton v. West, 12 Vet. App. 477, 480 (1999). However, the Court has held that there is some duty to inform the veteran of the evidence necessary for the completion of an application for benefits, under 38 U.S.C.A. § 5103 (West 1991), even where the claim appears to be not well grounded. Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996); Robinette v. Brown, 8 Vet. App. 69, 79-80 (1995). The appellant has not identified any medical evidence that has not been submitted or obtained, which would support a well-grounded claim. To submit a well-grounded claim, the veteran requires a diagnosis of a current skin disability and medical evidence providing a nexus between this current diagnosis and any incident of his military service, including possible exposure to Agent Orange. Thus, VA has satisfied its duty to inform the veteran under 38 U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). ORDER Entitlement to service connection for residuals of Agent Orange exposure, including chloracne, is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals