Citation Nr: 0007875 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-16 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of lead intoxication. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Associate Counsel INTRODUCTION The veteran served on active duty from April 1964 to April 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO), which denied the benefit sought on appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. There is no competent medical evidence of a nexus between the claimed lead intoxication disorder and the veteran's period of active military service or some incident thereof. CONCLUSION OF LAW The claim for service connection for residuals of lead intoxication is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in service. 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d) (1999). The chronicity provisions of 38 C.F.R. § 3.303(b) (1999) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court), lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). A person claiming VA benefits, however, must first meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well-grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well-grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well-grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc); Slater v. Brown, 9 Vet. App. 240, 243 (1996); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit, supra. The veteran essentially claims that during service in his job as a fuel specialist he was exposed to lead. In this case, the Board finds that the claim for service connection for a lead intoxication disorder is not well-grounded. The Board notes that the medical evidence includes service medical records, private clinical reports, a VA psychiatric examination report, and lay statements. However, there is absolutely no competent medical evidence of record that provided a nexus between the claimed lead intoxication disorder and the veteran's period of active service or any incident therein. Service medical records, including the April 1965 Medical Board examination report at discharge, contain no complaint, finding or diagnosis referable to a lead intoxication disorder. The Board notes that the veteran's DD Form 214, Service Personnel Record shows that his specialty was fuel specialist. Although the veteran was seen in October 1964 after he had some fuel contact on his face with subsequent blisters around his lips, no finding or diagnosis referable to lead was made. On physical examination at that time, scabs and scaling were noted, which were thought to be possibly secondary infection. The diagnosis was that it did not look like herpes simplex. A clinical note later that month noted that the problem had cleared up excellently with medication. The report of a February 1965 examination indicates that the veteran was tested for lead, and no evidence of lead was found. Post-service medical records include numerous private treatment reports for the period from 1967 through 1996. These records show treatment and examination for various complaints and conditions. However, the first medical record referable to a lead intoxication disorder is contained in a July 1994 private treatment record. The record of that visit shows that he was seen at that time on recommendation of his employer to have his lead level checked because some of the veteran's other co-workers had been found to have high levels. That report noted that the veteran worked in a radiator shop and was exposed to lead fumes and solder. The veteran reported that he used a respirator but admitted to taking it off at times to do his job. After examination, the assessment was that the veteran had a markedly elevated lead level. Subsequent private medical records show findings of high blood lead levels, and assessments of lead intoxication. The record shows that the veteran was first found to have high levels of lead in July 1994, when seen for suspected high lead levels due to exposure at his job. The veteran admits that he worked in contact with lead at his job from 1989 to 1997. None of the competent medical evidence of record, however, shows that the veteran's lead intoxication disorder is related to service. Thus, the claim is not plausible and, therefore, not well-grounded. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). If the veteran were to rely solely on his own assertion, or that of other lay witnesses, that his present lead intoxication disorder is attributable to inservice exposure to lead or other incident of service, any such lay opinion would be insufficient evidence to support the claim. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (holding that lay persons are not competent to offer medical opinions). Under these circumstances, the Board finds that the veteran has not submitted a well-grounded claim for service connection for a lead intoxication disorder. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Morton v. West, 12 Vet. App. 477 (1999); Epps, 126 F.3d at 1469; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). The veteran is free at any time in the future to submit evidence in support of his claim. Medical records of a current disorder, which is linked by a medical opinion linking any current findings with the veteran's military service would be helpful in establishing a well-grounded claim. Robinette v. Brown, 8 Vet. App. 69 (1995). ORDER Service connection for residuals of lead intoxication is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals