Citation Nr: 0007249 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 96-04 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether a well-grounded claim of entitlement to service connection for a skin condition has been submitted. 2. Whether a well-grounded claim of entitlement to service connection for an eye condition, claimed as night blindness, has been submitted. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The veteran INTRODUCTION The veteran served on active duty in the United States Army from April 1966 to April 1968. Service in Vietnam is indicated by official records. This appeal arose from a November 1995 decision of the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California (the RO) which denied the veteran's claims of entitlement to service connection for a skin condition and night blindness. FINDINGS OF FACT 1. The veteran served in Republic of Vietnam during the Vietnam Era. 2. Before and during service, refractive error of the eyes was diagnosed. 3. Cataracts and retinitis pigmentosa were initially diagnosed many years after service. 4. Skin disorders, identified in pathology reports as spongiotic dermatitis and psoriasis, were initially diagnosed many years after service. 5. Cataracts, retinitis pigmentosa, spongiotic dermatitis and psoriasis are not recognized as etiologically related to exposure to herbicide agents used in Vietnam. 6. Actual exposure to Agent Orange or to any other herbicide during the veteran's service in Vietnam has not been established. 7. Competent medical evidence has not been presented which relates the veteran's cataracts, retinitis pigmentosa, spongiotic dermatitis and psoriasis to his period of service or to any incident of service, including alleged exposure to Agent Orange. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for a skin condition or conditions. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for an eye condition or conditions. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection for a skin condition and an eye disability . In essence, he contends that these conditions are due to claimed exposure to Agent Orange in service. In the interest of clarity, the Board will first provide a factual background. Pertinent law and regulations will then be discussed. The Board will then analyze the two issues on appeal and render a decision. Factual background Pertinent medical history The veteran's service medical records have been carefully reviewed. His May 1965 pre-induction physical examination report noted problems with distant vision [right, 20/50 correctable to 20/20; left, 20/70, corrected to 20/50]. Refractive error was noted as the only defect/diagnosis. In the accompanying report of medical history, the veteran indicated that he wore glasses. His skin was assessed as normal and he did not mention skin problems. In August 1966, the veteran was seen in an Army eye clinic due to poor distance visual acuity since childhood. It appears that various prescriptions of corrective lenses were tried over approximately the next week. There are no further references to eye problems in the service medical records. The service medical records do not mention complaints of or treatment for skin problems. The veteran's March 1968 separation physical examination was essentially the same as his pre-induction examination. Refractive error was again identified. His skin was evaluated as normal. There are no pertinent medical records covering many years after service. A November 1992 private medical treatment record indicates that the veteran had experienced a rash since 1986. The assessment was pityriasis lichenoides chronicus. A December 1993 pathology report resulted in a final microscopic diagnosis of spongiotic dermatitis. Subsequent medical records indicate continuing skin problems. A VA examination was completed in October 1996. In his medical history, the veteran reported that he had served in Vietnam and had experienced skin rashes since 1986. He indicated that he had a lens implant of the right eye in 1990 and also referred to retinitis pigmentosa. The veteran was noted to wear corrective lenses. On physical examination, early cataracts were identified by the examiner, as were various scaling hyperpigmented macules and a few papules on the skin. A punch biopsy was done in November 1996. The pathology report concluded in a microscopic diagnosis of superficial perivascular dermatitis, psoriasform type, consistent with psoriasis. In May and June 1997 VA outpatient records, retinitis pigmentosa was identified. Hearing testimony The veteran testified at a personal hearing before a Hearing Officer at the RO in April 1996. In preliminary remarks, the veteran's representative conceded that the veteran had not been diagnosed with chloracne. The veteran testified that the area in which he was stationed was sprayed with Agent Orange to get rid of surrounding foliage so that the installation could not be easily attacked. The veteran further stated that because he was exposed to Agent Orange and dust from the exposed area he developed eye problems. The veteran reported that he was told in 1966 that he had defective vision and was given a new prescription for his glasses. He stated "They didn't tell me exactly that it was night blindness." The veteran testified that, although he first sought treatment for a skin problem in the mid 1980's, the skin problem began in Vietnam and existed thereafter, although it did not bother him to any great extent. Relevant law and regulations Service Connection - in general In general, the applicable law and regulations state that service connection may be granted on a direct basis for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Congenital or developmental defects such as refractive error of the eyes are not diseases or injuries for the purposes of service connection. 38 C.F.R. § 3.303(c), 4.9 (1998). See Winn v. Brown, 8 Vet. App. 510, 516 (1996), and cases cited therein. Service connection - Agent Orange exposure 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) (1999) are met even though there is no record of such diseases during service, provided further that the rebuttable presumption provisions of § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Multiple myeloma; Non- Hodgkin's lymphoma; Acute and subacute peripheral neuropathy; Porphyria cutanea tarda; Prostate cancer; Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Soft- tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) (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; Malignant ganglioneuroma; (For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset.) 38 U.S.C.A. § 1116 (West 1991 & Supp. 1999); 38 C.F.R. § 3.309(e) (1999). These diseases shall become manifest to a degree of 10 percent or more at any time after service, except that chloracne, other acne disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall be come manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313 (1999). Under 38 U.S.C.A § 1116(b)(1) (1999), when the Secretary of VA determines, on the basis of sound medical and scientific evidence, that a positive association exists between the exposure to humans to an herbicide agent and the occurrence of a disease in humans, the Secretary must prescribe regulations providing that a presumption of service connection is warranted for that disease. Notwithstanding the above, the United States Court of Appeals for the Federal Circuit has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). As such, the Board must not only determine whether the veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam (See 38 C.F.R. § 3.309(e)), but must also determine whether his current disability is the result of active service under 38 C.F.R. § 3.303(d). In other words, the fact that the veteran may not meet the requirements of 38 C.F.R. § 3.309 would not in and of itself preclude him from establishing service connection as he may, in the alternative, establish service connection by way of proof of actual direct causation, showing that his exposure to an herbicide during service caused any current disorders. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). Well grounded claims The threshold question in this case is whether the veteran has presented evidence of a well-grounded claim, that is, a claim which is plausible, meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107. Murphy v. Derwinski, 1 Vet. App. 78 (1990). Although the claim need not be conclusive, it must be accompanied by evidence which justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The statutory duty to assist the veteran in the development of his claim does not arise unless and until a well-grounded claim is presented. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet. App. 19, 21 (1993). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Murphy, 1 Vet. App. at 81. A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under section 5107(a). See Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). Analysis In Caluza v. Brown, 7 Vet. App. 498, 506 (1995), in the context of a veteran's claim for service connection, the Court stated that in order for a claim to be well grounded, that is plausible, there must be competent evidence of (1) a current disability (a medical diagnosis), (2) incurrence or aggravation of a disease or injury in service (lay or medical evidence), and (3) a nexus between the in-service injury or disease and the current disability (medical evidence). It must first be shown, therefore, that there is medical evidence of current disability. The second requirement for a well-grounded claim under Caluza is evidence of a disease or injury in service. The third requirement is that there must be medical evidence of a link between the two, which must be established by competent medical evidence. See Layno v. Brown, 6 Vet. App. 465, 4709 (1994) and cases cited therein. Recent medical records indicate that the veteran has a skin disability or disabilities, identified in pathology reports as spongiotic dermatitis and most recently as psoriasis. The veteran also has eye disabilities, retinitis pigmentosa and cataracts. Thus, current disability is established. The Board will move on to a discussion of in-service incurrence, focusing on claimed exposure to Agent Orange. Presumptive service connection - exposure to herbicides With respect to a claim of disability attributable to herbicide exposure, where there is medical evidence of a current disorder under § 3.309(e) (1999), and there is competent evidence of herbicide agent exposure, then the third requirement under Caluza, the nexus, is, in essence, presumed. See 38 C.F.R. § 3.309(e) (1999). In McCartt v. West, 12 Vet. App. 164 (1999), the Court held that in order to be afforded the presumption of exposure to certain herbicide agents, the record must show both service in Vietnam during the Vietnam Era, and the presence of one of the diseases specified in 38 U.S.C.A. § 1116(a) or 38 C.F.R. § 3.309(e). 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). In this case, the evidence of record shows that the veteran has recognized service in the Republic of Vietnam. Thus, the question is whether he has a presumptive disease under § 3.309(e) in order to establish a well-grounded claim based on exposure to Agent Orange during service. The disorders granted presumptive service connection under 38 C.F.R. § 3.309(e) are specified with precision, and do not include any of the skin and eye disorders which have been medically identified. The veteran's representative, at the personal hearing, specifically indicated that the medical evidence did not indicate that the veteran had been diagnosed with chloracne, which was and is an accurate statement. Since the record does not include a diagnosis of one of the specific disorders entitled to presumptive service connection under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e) (1999), the claim as evaluated under the regulations governing presumptive service connection based on exposure to herbicides is not well-grounded. Non presumptive service connection - exposure to herbicides Notwithstanding the foregoing, as discussed above, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 State. 2725, 2727-29 (1984) does not preclude an appellant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994). As noted above, in order to well ground the claim, three elements must be established: current disability; in-service incurrence; and medical nexus. As noted above, the first Caluza element, current disabilities, is established. With respect to the second element, in-service incurrence, the veteran's service medical records did not document any actual exposure to Agent Orange or other herbicides during service, nor was any evidence of skin or eye disability shown during service, aside from the pre-existing refractive error. The mere fact that a veteran had service in Vietnam or off the shores of Vietnam is insufficient in and of itself to establish exposure to Agent Orange or any other herbicides during that time. See 38 U.S.C.A. § 1116(a)(3) and 38 C.F.R. § 3.307(a)(6)(iii); see also McCartt v. West, 12 Vet. App. 164 (1999). With respect to the third element, medical nexus evidence, there has been no competent medical evidence presented linking the veteran's current skin and eye disabilities to any incident of service, including exposure to Agent Orange. The veteran himself has stated that he was exposed to Agent Orange during service and that this exposure was etiologically related to the post-service development of the claimed eye and skin disabilities. The veteran's assertions of a causal link, standing alone, without the support of competent medical evidence, are not probative of a causal link because as noted above the veteran, as a lay person, is not competent to offer medical opinions. Moreover, the veteran's contentions and testimony to the effect that he sustained Agent Orange exposure during service is not considered competent as to that question. See Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494-5. The Board notes in passing that the service records do not indicate that the veteran is a combat veteran, and the veteran does not so contend. The provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) are therefore inapplicable to this case. In conclusion, the Board finds that although there is evidence of current disabilities, there is no competent medical evidence of record which establishes that the veteran was exposed to Agent Orange or any other herbicide during service in Vietnam or any competent medical evidence of a nexus between the veteran's alleged exposure to Agent Orange, or any other herbicide agent, while in Vietnam and the claimed skin and eye disabilities. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the veteran's claims of entitlement to service connection are not well grounded and are denied. Direct and presumptive service connection - other than Agent Orange exposure The veteran has advanced two additional contentions which in essence are unrelated to his other contentions involving Agent Orange exposure. He has noted that he had eye problems during service, and he contends that he had skin problems in service which continued thereafter, although he did not seek medical treatment until 1986, almost two decades later. With respect to the in-service eye disability, the service medical records indeed corroborate the veteran's testimony that he was prescribed new glasses during the summer of 1966. However, the evidence of record, including the pre-induction examination report and medical history, shows that he had a problem with refractive error of the eyes since childhood. The veteran does not dispute this. As noted above, service connection may not be granted for refractive error of the eyes, as such is considered to be a congenital or developmental defect. See 38 C.F.R. §§ 3.303, 4.9. As noted in the factual background section above, the veteran did not testify that retinitis pigmentosa was identified in service. His testimony was essentially consistent with the evidence of record, which indicates that the only in-service eye problem was refractive error. With respect to the claimed skin disability, the veteran testified that it began in service and continued thereafter. Although his hearing testimony appears to be somewhat inconsistent with previous reports to health care providers that the skin problems started in 1986, many years after service, for the limited purpose of ascertaining that the claim is well grounded, the Board will accept as true this testimony. See King, supra. However, even though the veteran has provided evidence of continuity of symptomatology, he is still required provide competent medical nexus evidence linking those symptoms to his claimed skin disorder. See Voerth v. West, 13 Vet. App. 117, 120 (1999). In this case, there is no competent medical evidence of record linking his claimed symptoms in service and after to any currently diagnosed skin disorder, the first evidence of which was a quarter of a century after service. In summary, for the reasons and bases expressed above, the Board concludes that the veteran has not submitted well grounded claims of entitlement to service connection for skin and eye disabilities. In the absence of well grounded claims, the benefits sought on appeal are denied. Additional comments Because the veteran's claims are not well grounded, VA is under no duty to further assist the veteran in developing facts pertinent to those claims. 38 U.S.C.A. § 5107(a). VA's obligation to assist depends upon the particular facts of the case and the extent to which VA has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). The Court has held that the obligation exists only in the limited circumstances where the veteran has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, the VA is not on notice of any known and existing evidence which would make the service connection claims plausible, and thereby, well-grounded. The Board's decision service to further inform the veteran of the kind of evidence which would serve to make his claim well-grounded, in particular competent medical evidence which establishes a nexus between his military service and his claimed disabilities. ORDER A well grounded claim not having been submitted, entitlement to service connection for a skin condition is denied. A well grounded claim not having been submitted, entitlement to service connection for an eye condition is denied. Barry F. Bohan Member, Board of Veterans' Appeals Although the veteran's claimed eye disability has been denominated "night blindness", it is clear from the history of this case, reported in detail below, that the veteran seeks service connection for vision impairment in general. See his initial claim of entitlement to service connection, VA Form 21-526, filed in July 1995: "my vision is impaired and also night blindness". For the purposes of presumptive service connection, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i) (1999).