Citation Nr: 0005235 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 96-05 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for vitiligo and pernicious anemia as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARING ON APPEAL Veteran and his spouse. ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from December 1968 to January 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 1995, the veteran's claim was transferred to the Oakland, California, RO for further adjudication. In August 1999, this case was remanded to the RO for additional development. A hearing was held before the undersigned in November 1999. FINDINGS OF FACT 1. The VA does not recognize vitiligo or pernicious anemia as etiologically related to exposure to herbicide agents used in Vietnam. 2. No competent medical expert has associated either vitiligo or pernicious anemia with the veteran's alleged exposure to herbicide agents used in Vietnam. CONCLUSION OF LAW The claims of entitlement to service connection for vitiligo, and pernicious anemia as a result of exposure to Agent Orange are not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.307(a), 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that it has no doubt about the veteran's good faith belief in the validity of his claim. The Board is not empowered, however, to award benefits based upon a subjective assessment of the claimant's good faith. Rather, the Board is constrained to follow the law as set forth in the statutory and regulatory provisions and the controlling case law. For the reasons set forth below, the Board has no recourse other than denying the claims on the current record. The threshold question in this matter is whether the veteran has presented evidence of well-grounded claims. In this case, service medical records make reference to tinea versicolor at the veteran's enlistment evaluation in December 1968. At this time, it was noted to be located in the veteran's upper extremities. Treatment by a dermatologist is indicated in March 1969. However, little reference is made to this condition during service. At the discharge evaluation in January 1970, the veteran's skin was found to be normal. He was discharged from active service that month. During his initial claims for VA compensation, the veteran made no reference to a skin disability. At a VA evaluation in January 1974, no reference was made to a skin disorder. In January 1990, the veteran requested "re-evaluation" of his service connection to include pernicious immunization and vertigo. In a February 1990 response, the RO noted that these conditions had not been previously claimed and, therefore, not rated. In April 1990, the veteran indicated that he was claiming service connection for pernicious anemia and vitiligo. Additional outpatient treatment records were obtained which failed to associate these disabilities with the veteran's active service. The veteran noted that small spots started to appear during his active service. He contented that this condition had been ignored during service. In a May 1991 statement, a VA evaluator noted that the veteran had been treated in the outpatient dermatology clinic for vitiligo involving approximately 70 percent of his body. At this time, the evaluators who signed this report did not indicate that this condition was associated with Agent Orange or the veteran's active service. In April 1992, the veteran noted that while in Vietnam he noticed a loss of skin pigment around his neck and chest area. He indicated that he complained of this condition and was given skin lotion. The veteran also stated that medical staff at a hospital in which he was being treated for his psychiatric disability believed that his skin condition was related to a nervous condition due to his experience in Vietnam. He indicated that he strongly believed that his skin condition was related to some type of chemical exposure while stationed in Vietnam. In December 1997, the veteran reported all health care providers who had treated his skin disorder. Extensive efforts were made by the RO to obtain these records. However, once again, none of these records associate the skin disorder or anemia with active service. In May 1998, the RO contacted the veteran and noted the health care providers contacted in order to obtain medical records pertinent to the veteran's claims. The RO requested the veteran's assistance in obtaining these records. Both the RO and the veteran obtained additional medical records. These records continue to note treatment for the veteran's skin condition. However, no health care provider associates this disability with the veteran's active service. In a statement received in August 1998, the veteran's brother indicated that the veteran had informed him that he had been exposed to chemicals during his active service. The brother believed that this exposure caused the veteran's skin condition. In medical evidence dated March 1999, the veteran presented to the Board information regarding vitiligo. This information indicates vitiligo is the result of a disappearance of the skin's melanocytes. It was indicated that no one knows why this condition occurs, but that four main theories exist: (1) abnormally functioning nerve cells; (2) the body's immune system may destroy melanocytes; (3) pigment producing cells may self-destruct; and (4) a genetic defect. Significantly, medical evidence supplied by the veteran failed to note that this condition could be associated with exposure to chemicals. In August 1999, the Board remanded this case to the RO in order to schedule the veteran for a hearing that was held before the undersigned in November 1999. At that time, the veteran contended that his skin condition was either caused or aggravated by his active service. He noted the use of oral medication during his active service for treatment of his condition. However, he was not specific regarding the nature of this treatment. It was contended that the veteran's exposure to Agent Orange during his active service either caused or aggravated the disability. It was also contended that the skin disorder had caused the veteran's anemia. Analysis In a July 1990 rating determination, service connection for pernicious anemia and vitiligo were denied by the RO. A notice of disagreement to this determination was received in November 1990 and a Statement of the Case regarding these claims was issued by the RO in December 1990. In March 1992, the RO noted that a recent statement submitted by the veteran was not a timely filed substantive appeal. However, the veteran had also submitted a statement in May 1991, within one year of the RO's July 1990 determination. In adjudicating VA claims, a veteran must perfect an appeal by submitting a substantive appeal within 60 days of the date the VA office mails him a Statement of the Case, or within the remainder of the one year period after the date he was mailed notification of the adverse determination, whichever period ends later. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1999). The Board has accepted a May 1991 statement from the veteran as a substantive appeal. Accordingly, the Board will proceed with the adjudication of this claim on a de novo basis. As the RO has previously evaluated this claim on a de novo basis, the Board finds no prejudice in adjudicating this claim at this time. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Initially, the Board must note that since the most recent Supplemental Statement of the Case the veteran has submitted records in support of his claim. Under 38 C.F.R. § 20.1304(c) (1999) any "pertinent" evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, as well as any other evidence referred to the Board by the originating agency under § 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case unless the procedural right is waived by the appellant or representative or unless the Board determines that the benefit, or benefits, to which the evidence relates may be allowed on appeal without such referral. In this case, the Board has found that the evidence submitted by the veteran is not pertinent to the veteran's current claims. The records supplied by the veteran do not support the conclusion that the claim is well grounded nor does it supply any basis to allow the veteran's claims. The records, including an outpatient treatment report, fails to provide any pertinent evidence. Accordingly, the Board will proceed with adjudication of the veteran's claims. Unlike civil actions, the VA benefit system requires more than just an allegation. The claimant must submit supporting evidence. Furthermore, the evidence must be sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). If a veteran was exposed to an 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) 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) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; Non- Hodgkin's lymphoma; porphyria cutanea tarda; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1999). The term "soft-tissue sarcoma" includes the following: adult fibrosarcoma; dermatofibrosarcoma protuberans; malignant fibrous histiocytoma; liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor); glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; and malignant ganglioneuroma. 38 C.F.R. § 3.309(e). The statutory and regulatory provisions pertaining to Agent Orange exposure include 38 U.S.C.A. § 1116 (West 1991 & Supp. 1998); 38 C.F.R. § 3.307 (1999). They provide for presumption of exposure to all herbicide agents for veterans who served on active duty in Vietnam during the Vietnam War and who have a disease listed at § 3.309(e). (Emphasis added.) Vitiligo and pernicious anemia are disabilities not listed within 38 C.F.R. § 3.309(e). The U.S. Court of Appeals for Veterans Claims (Court) has pointed out that the use of the word "and" in both the statutory and regulatory provisions mandates that the presumption of exposure only applies to those who both (1) served in Vietnam and (2) developed a specified disease. McCartt v. West, 12 Vet. App. 164 (1999). The United States Court of Appeals for the Federal Circuit determined that § 5 of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act of 1984, Pub. L. No. 98- 542, 98 Sta. 2725, 2727-29, did not preclude, or authorize VA to preclude, an appellant from proving that he or she had a disability as a result of exposure to ionizing radiation under the provisions of 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d), despite the fact that the claimed disability is not a potentially "radiogenic disease" under 38 C.F.R. § 3.311b (now § 3.311(1999)). Combee v. Brown, 34 F.3d 1039 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). In such cases, an appellant must be given an opportunity to prove that the exposure to ionizing radiation during service actually caused the claimed disability and that service connection is therefore warranted under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(d). In light of Combee, the Board has not only considered whether the veteran in this case has a disability listed in 38 C.F.R. § 3.309(e), but has also considered if his current disability is the result of active service under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(d). The fact that the veteran does not meet the requirements of 38 C.F.R. § 3.309(e) does not preclude him from establishing service connection with proof of actual direct causation. However, the Court has also held that where the issue involves medical causation (such as whether a current disability is the result of chemical exposure) competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The medical record does not reveal that the veteran, his brother or his representative possess any medical expertise, and they have not claimed such expertise. Thus, the lay medical assertions of the veteran and his brother, as well as those of his representative, that his disabilities are the result of his active service or due to exposure to unknown chemicals during service have no probative weight. On the issue of medical causation, the Court has been clear. See Hyder v. Derwinski, 1 Vet. App. 221, 225 (1991). The Court has provided the Board a series of important cases on the issue of what constitutes a "well-grounded" claim. In Caluza v. Brown, 7 Vet. App. 498 (1995), the Court held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1997) by (a) evidence that a condition was "noted" during service or an applicable presumption 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 post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. The Board finds that the veteran's claims are not well grounded when evaluated in light of the above requirements. The Board has carefully considered the statements of the veteran with respect to this claim; however, he cannot meet the burden imposed by § 5107(a) merely by presenting lay statements as to the existence of a disability and a relationship between that disability and his service because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions of medical etiology or diagnosis cannot constitute evidence to render a claim well grounded under § 5107(a). Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); and Fluker v. Brown, 5 Vet. App. 296, 299 (1993). The veteran has made evidentiary assertions that apparently go to the question of continuity of symptoms from service to the present. While the veteran is competent to establish the existence of manifestations perceptible by a lay party such as spots on his skin, he is not competent to link them to a particular medical diagnosis producing such manifestations, unless that disorder is itself susceptible to lay observation. The example provided by the Court where lay evidence of continuity of symptomatology can well ground a claim is flat feet. The Court found that both the manifestations and the actual disability could be perceived by a lay person. Savage, supra. There are, however, a great many types of skin disabilities. The Board can not find that the veteran is competent to link visible symptoms with a specific diagnosis of a skin disability. Thus, he can not well ground his claim by continuity of symptomatology. The veteran has contended that his skin disorder is the result of Agent Orange exposure and that this condition has caused pernicious anemia. However, based on a review of the medical evidence of record, no health care provider has supported the veteran's contention. While the Board will concede without deciding that the veteran may have been exposed to herbicide agents during his active military duty, and certain skin disorders have been associated with herbicide exposure, the veteran has never been diagnosed with these conditions. Neither vitiligo nor pernicious anemia is listed within 38 C.F.R. § 3.309(e). In this context, the RO has repeatedly advised the veteran of the lack of medical evidence supporting his claim and the RO has made very extensive efforts to develop all the medical evidence the veteran has alleged to exist pertaining to his claims. Therefore, the Board finds that RO has exceeded the duty set out in Combee that he must be notified that he can submit evidence to prove that alleged exposure to herbicides or other alleged exposures in service caused his current vitiligo and pernicious anemia. In this matter the RO has, in fact, attempted to develop any evidence that would support such a theory. The veteran has contended that his skin condition was aggravated by his active service. However, he has never cited to a health care provider who has directly evaluated his condition that would support this contention. Regarding the material submitted by the veteran, the Court has addressed whether medical text can constitute competent medical evidence to establish the nexus element necessary to make a claim well grounded in a specific case. In Libertine v. Brown, 9 Vet. App. 521, 523 (1996), the Court, citing Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996), held that such evidence is "too general and inconclusive to make [a] claim well grounded." More recently in Mattern v. West, 12 Vet. App. 222 (1999), the Court noted that it had previously addressed the relevance of medical treatise evidence to the determination of well-groundedness, and determined that generally, an effort to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise "is too general and inconclusive" to well ground a claim. The Court went on to indicate that medical treatise evidence can, however, provide important support when combined with an opinion of a medical professional. Similarly, medical treatise evidence could "discuss[] generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon objective facts." Wallin v. West, 11 Vet. App, 509, 514 (1998). The Board finds these cases also provide guidance as to whether a diagnosis, rather than the nexus element of a well-grounded claim, can be established by a medical text. The Board concludes that generally descriptive texts, such as that offered by the claimant, clearly do not provide the degree of certainty such as to make these claims well grounded. With specific regard to the contention that his pre-service skin condition was aggravated by his active service, the Board has taken into consideration the case of Allen v. Brown, 7 Vet. App. 439 (1995). However, the medical evidence of record will not support a finding that the veteran suffers from any disability which can be associated to an aggravation of any pre-service skin disability caused by active service. The veteran has supplied no competent medical evidence to support this contention, a requirement for a "plausible" claim under 38 U.S.C.A. § 5107 (West 1991). See Murphy, 1 Vet. App. at 81. The veteran's own testimony to the effect that a causal link exists between his current skin disorder and an alleged aggravation of this disorder during service is not competent for reasons noted above. Within the veteran's statements and testimony, the veteran appears to indicate that he has been told that his skin condition may be the result of Agent Orange exposure and that the skin disorder may have caused his anemia. The Board finds no basis to conclude that additional medical records pertinent to these claims are available which would support this contention. The Board must note that, where a claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. Epps v. Gober, 126 Fed. 3rd 1464 (Fed. Cir. 1997). In Robinette v. Brown, 8 Vet. App. 69, 77 (1995), the Court stated that if a claim alleges the existence of medical evidence that, if true, would have made the claim plausible, the VA would be under a duty under 38 U.S.C.A. § 5107(a), to advise him to submit such evidence to complete their application for benefits. The Court also held, however, that the obligation exists only in limited circumstances where the veteran has referenced other known and existing evidence. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). Neither the Board nor the RO is on notice of the existence of any obtainable documentary evidence, that, if true, would make the veteran's claim for service connection for these disabilities plausible. Accordingly, the claims must be denied. ORDER Entitlement to service connection for a skin condition and pernicious anemia as secondary to Agent Orange exposure is denied. Richard B. Frank Member, Board of Veterans' Appeals