Citation Nr: 0003568 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 96-41 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for bilateral aortoiliac occlusive disease, to include as secondary to herbicide exposure in Vietnam. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from June 1970 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied service connection for bilateral aortoiliac occlusive disease, claimed as a bilateral leg disorder. In his August 1996 Substantive Appeal, the veteran expanded his claim for service connection to include consideration based on herbicide exposure in Vietnam, and the Board acknowledged this expansion during his March 1998 Board hearing. The Board remanded this case back to the RO in April 1998 for further development, to include a search for records. The requested development has been accomplished in compliance with the Board's remand instructions, and the case has since been returned to the Board. FINDINGS OF FACT 1. The veteran has not been diagnosed with any disorder recognized by the VA as etiologically related to herbicide exposure in Vietnam. 2. There is no competent medical evidence of a nexus between the veteran's currently diagnosed bilateral aortoiliac occlusive disease and service. CONCLUSION OF LAW The claim of entitlement to service connection for bilateral aortoiliac occlusive disease, to include as secondary to herbicide exposure in Vietnam, 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 for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Also, certain chronic diseases, including cardiovascular diseases, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). VA regulations also provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era and has one of the diseases listed in 38 C.F.R. § 3.309(e) (1999) shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 3.307(a)(6)(iii) (1999). Service connection due to exposure to an herbicide agent may be granted on a presumptive basis for certain diseases listed in 38 C.F.R. § 3.309(e) (1999). For example, service connection may be granted for an acneform disease consistent with chloracne, or porphyria cutanea tarda, if such a disease is manifested to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). See The Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991). The Secretary of Veterans Affairs (Secretary) has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 41,422-449 (1996). Nonetheless, even if a veteran has not been diagnosed with a disease listed in 38 C.F.R. § 3.309(e) (1999), he or she is not precluded from establishing service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1999), cert. denied, 118 S.Ct. 1171 (1998). The initial question which must be answered in this case, however, is whether the veteran has presented a well-grounded claim for service connection. In order for a claim for service connection to be well grounded, the claim must be shown to be at least plausible and capable of substantiation. Specifically, 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 v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The nexus requirement may be satisfied by evidence showing that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). 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 v. Gober, 126 F.3d at 1468. Furthermore, 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 post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of evidence of continuity of symptomatology. Savage v. Gober, 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 noting the specific symptomatology is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one for which a lay person's observation is competent. Id. at 497. In the case of disease, service connection also may be established under 38 C.F.R. § 3.303(b) (1999) 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 v. Gober, 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. Additionally, in Epps, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C.A. § 5107(a) (West 1991), the VA has a duty to assist only those claimants who have established well- grounded claims. Id. at 1468. More recently, the United States Court of Appeals for Veterans Claims (Court) held that the VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). 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 the VA is obligated under 38 U.S.C.A. § 5107(a) (West 1991) to assist the claimant in developing the facts pertinent to the claim. In this case, the veteran's service medical records are entirely negative for any leg or cardiovascular disorders. Subsequent to service, in April 1985, the veteran was treated at a VA facility for dependent edema of the right lower extremity, reportedly present for three to four months. A May 1985 VA treatment record indicates that this edema might possibly be secondary to venous insufficiency. A March 1991 Army National Guard (ANG) examination report contains a notation of questionable pseudoclaudication (radiculopathy) versus true claudication. The report of a hospitalization from August to September of 1992 at Memorial Hospital of Martinsville and Henry County (in Virginia) contains a diagnosis of aortoiliac occlusive disease, with no specific information regarding etiology other than the veteran's reported six month history of intermittent claudication. There was no reference to service. During the hospitalization the veteran underwent an aortofemoral by pass. In a September 1994 letter, David H. Lewis, M.D. indicated that, because of an increase in this disease, the veteran would have "a difficult time continuing to function effectively in the military." An October 1994 VA treatment record indicates that the veteran had complained of suffering from leg symptoms for ten years. A November 1994 ANG medical examination report indicates that the veteran had a return of claudication that restricted his duty to sedentary activity. While an October 1996 VA Agent Orange examination report contains a diagnosis of bilateral aorta-iliac occlusive disease, the examiner noted that "[t]here does not appear to be any relationship to Agent Orange exposure in this man." Initially, in analyzing the facts of this case, the Board would point out that aortoiliac occlusive disease is not among the diseases listed in 38 C.F.R. § 3.309(e) (1999), for which presumptive service connection based on herbicide exposure is warranted. As such, the Board has also considered the veteran's claim for service connection on a direct basis. However, the records noted above contain no competent medical opinions or other evidence suggesting a nexus between the veteran's current aortoiliac occlusive disease and service, including his claimed Agent Orange exposure. There is also no competent medical evidence establishing that the veteran developed a cardiovascular disorder in service or within one year following service. Indeed, the only evidence of record suggesting a relationship between the veteran's current disorder and service is the lay evidence of record, including the testimony from his March 1998 VA hearing. During this hearing, the veteran asserted that he first began having problems with his legs in 1973 and that these problems were related to Agent Orange exposure in service. Also, he noted that a private doctor had suggested that his current disability could be related to service. However, the veteran has not been shown to possess the medical expertise necessary to render a diagnosis or to establish a nexus or link between a currently diagnosed disorder and service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Moreover, the veteran's lay history of incurrence, as noted by several medical examiners and unenhanced by any additional medical commentary by those examiners, does not constitute competent medical evidence. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). See also Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (a lay account of a physician's statement, "filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). Therefore, the lay contentions of record, alone, do not provide a sufficient basis upon which to find this claim to be well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board would also point out that the veteran has not contended, and the record does not in any way suggest, that his current disability is related to any periods of active duty for training arising from his service in the ANG. A well-grounded claim must be supported by evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of competent medical evidence to support the veteran's assertions relating his bilateral aortoiliac occlusive disease to service, either on a direct basis or as due to herbicide exposure in Vietnam, his claim for service connection for this disability must be denied as not well grounded. Since the veteran's claim is not well grounded, the VA has no further duty to assist him in developing the record to support his claim. See Epps v. Gober, 126 F.3d at 1467-68 (Fed. Cir. 1997) ("there is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim"). The Board recognizes that, in the most recent Supplemental Statement of the Case, issued in August 1999, the RO denied the veteran's claim as not well grounded. The RO had initially denied this claim on its merits in the appealed October 1995 rating decision. Regardless of the basis of the RO's denial, however, the Board observes that the Court has held that no prejudice to the veteran results in cases where the RO denies a claim for service connection on its merits and does not include an analysis of whether the claim is well grounded, and the Board denies the same claim as not well grounded. See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). Finally, the Board observes that, during his March 1998 hearing, the veteran described treatment from several private doctors and his claim was remanded for further development in April 1998. In subsequent correspondence, the RO informed the veteran of the steps he needed to take so that records of such treatment could be obtained, but the veteran did not provide the requested information. The veteran's failure to reply to this request was also noted in the Supplemental Statement of the Case which was provided to him in August 1999. In this regard, the Board would point out that the VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to notify the veteran of the evidence needed to complete his application for service connection when the VA is aware of the existence of relevant evidence. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997); see also Robinette v. Brown, 8 Vet. App. at 77-78. The VA has complied with its duty, but the veteran has not provided the requested information. Essentially, the veteran needs competent medical evidence of a relationship between his current disability and service in order to well ground his claim. ORDER A well-grounded claim not having been submitted, entitlement to service connection for bilateral aortoiliac occlusive disease, to include as secondary to herbicide exposure in Vietnam, is denied. STEVEN L. COHN Member, Board of Veterans' Appeals