Citation Nr: 0000956 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-04 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for multiple skin lesions as undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The appellant served on active duty from March 1965 to March 1969 and from October 1990 to August 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 1998 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The appellant had active miliary service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The appellant has not submitted sufficient evidence to justify a belief by a fair and impartial individual that his claim for service connection for multiple skin lesions is plausible. CONCLUSION OF LAW The claim of entitlement is service connection for multiple skin lesions is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 5107(a), a VA claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a claim of entitlement to service connection is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 73 (1995). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is generally required for the claim to be well grounded. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Establishing service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the asserted in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998). Alternatively, the third Caluza element can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. Savage v. Gober, 10 Vet. App. 488, 495 (1997). Also, in the case of a disease only, service connection may be established 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, 10 Vet. App. at 495. With regard to a showing of a chronic disability in service, the Court concluded in Savage that chronicity could be shown by "either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period." Id The evidence submitted in support of a claim must be accepted as true for the purposes of determining whether the claim is well grounded except when the evidentiary assertion is "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). The appellant's service medical records are negative for any mention of or treatment for skin lesions (other than athlete's foot for which service connection has been established). The appellant was examined in April 1991 as he left Southwest Asia, and again as part of the VA Persian Gulf Registry Program, in November 1993. During neither of these examinations did the appellant note or complain of any skin lesions, nor did the examiner report any such lesions. VA medical records indicate that in January 1996, the appellant complained of a mass on the back of his left shoulder that he had noticed for the past six to eight months, and a lesion on his right ear that he had noticed in the past month. These two skin lesions were biopsied, diagnosed and treated. The mass on his shoulder was diagnosed as sebaceous cyst versus a lipoma and was excised on January 25, 1996. The lesion on his right ear was biopsied on that same day and diagnosed as a squamous papilloma. The squamous papilloma was treated that day with electric cauterization and, was treated again in February 1997 with cryotherapy. In March 1997, the squamous papilloma on his ear had responded well to the cryotherapy. The appellant has offered no medical evidence showing any nexus, or link, between his recent skin lesions and any incident or disease shown in service. In fact, the appellant has offered no evidence of any sort suggesting a connection between his service and his recent skin lesions. Therefore, the appellant has not met the third part of the Caluza test, a showing of a nexus, or link, between the asserted in- service disease or injury and the present disease or injury. Caluza, 7 Vet. App. at 506. Considering the foregoing facts, the Board concludes that the appellant has not submitted evidence sufficient to render his claim of service connection for multiple skin lesions plausible. Id., at 498. The Board notes that the appellant has claimed that these lesions should be treated as undiagnosed illnesses under 38 C.F.R. § 3.317, based on his service in Southwest Asia. VA is authorized to pay compensation to any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness (or combination of undiagnosed illnesses) that either became manifest during service in the Southwest Asia theater of operations during the Persian Gulf War or became manifest to a degree of disability of 10 percent or more within any presumptive period prescribed by VA. 38 U.S.C.A. § 1117 (West Supp. 1999); 38 C.F.R. § 3.317 (1999). A well-grounded claim for compensation under 38 U.S.C. § 1117(a) and 38 C.F.R. § 3.317 for disability due to undiagnosed illness generally requires the submission of some evidence of: (1) active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) the manifestation of one or more signs or symptoms of undiagnosed illness; (3) objective indications of chronic disability during the relevant period of service or to a degree of disability of 10 percent or more within the specified presumptive period; and (4) a nexus between the chronic disability and the undiagnosed illness. VAOPGCPREC 4-99 (May 3, 1999). With respect to the second and fourth elements, VAOPGCPREC 4- 99 indicates that evidence the illness is "undiagnosed" may consist of evidence that the illness cannot be attributed to any known diagnosis or, at minimum, evidence that the illness has not been attributed to a known diagnosis by physicians providing treatment or examination. The type of evidence necessary to establish a well-grounded claim as to each of these elements may depend upon the nature and circumstances of the particular claim. Medical evidence would ordinarily be required to satisfy the fourth element, although lay evidence may be sufficient in cases where the nexus between the chronic disability and the undiagnosed illness is capable of lay observation. For purposes of the second and third elements, VAOPGCPREC 4- 99 indicates that the manifestation of one or more signs or symptoms of undiagnosed illness or objective indications of chronic disability may be established by lay evidence if the claimed signs or symptoms, or the claimed indications, respectively, are of a type which would ordinarily be susceptible to identification by lay persons. If the claimed signs or symptoms of undiagnosed illness or the claimed indications of chronic disability are of a type which would ordinarily require the exercise of medical expertise for their identification, then medical evidence would be required to establish a well-grounded claim. With respect to the third element, a veteran's own testimony may be considered sufficient evidence of objective indications of chronic disability, for purposes of a well-grounded claim, if the testimony relates to non-medical indicators of disability within the veteran's competence and the indicators are capable of verification from objective sources. In the present case, this regulation does not provide sufficient grounds on which to grant service connection for skin lesions. Among the criteria required under the regulation is that the disability by history, physical examination and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). That is manifestly not the case here. The appellant has a definite diagnosis for each of his skin lesions he has had treated since leaving service in 1991. In light of the diagnoses, there is no application of 38 C.F.R. § 3.317 to allow service connection for these conditions. The Board has considered the appellant's contentions on appeal, however, this evidence alone cannot meet the burden imposed by 38 U.S.C.A. § 5107(a) with respect to the existence of a disability and a relationship between that disability and his service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions will not support a finding on medical questions requiring special expertise or knowledge, such as diagnosis or causation of a disease. Id. at 494-95. Moreover, it is not shown that the appellant is competent based on medical training and professional status to render a medical diagnosis or opinion. On the basis of the above findings, the Board can identify no basis in the record that would make the appellant's claim of service connection plausible or possible. 38 U.S.C.A. § 5107(a); see also Grottveit, 5 Vet. App. at 92, Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the veteran has not met this burden, the VA has no further duty to assist him in developing facts pertinent to the claim, including no duty to obtain a medical examination or opinion. 38 U.S.C.A. § 5107(a); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992) (where the claim was not well grounded, VA was under no duty to provide the veteran with an examination); see also Morton v. West, 12 Vet. App. 477 (1999) (if a well-grounded claim has not been submitted, there is no duty on the part of VA to assist in the claim's full development). Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application. This obligation depends on the particular facts of the case and the extent to which the claimant has been advised of the evidence necessary to well ground a claim. Robinette, 8 Vet. App. 69 (1995). Here, the Board finds that VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits for service connection for multiple skin lesions. Nothing in the record suggests the existence of any additional evidence that might well ground this claim, particularly in light of the fact that the RO provided several medical examinations to the appellant, and collected voluminous medical records. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). See also Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence) and Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA "duty" is just what it states, a duty to assist, not a duty to prove a claim). It is not shown nor contended that additional relevant evidence exists that has not already been associated with the claims file. Finally, the Board has decided the present appeal on a different legal basis than the RO did. When the Board addresses in a decision a question that has not been addressed below, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, the appellant has not been prejudiced by the decision herein. The Board has considered the same law and regulations the RO did, but in so doing, concludes that the appellant did not meet the threshold requirements of a well-grounded claim for disability compensation benefits. See Edenfield v. Brown, 8 Vet. App. 384 (1996) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). The result is the same. Accordingly, the Board must deny the appellant's claim of service connection for multiple skin lesions as not well grounded. ORDER Entitlement to service connection for multiple skin lesions is denied, as the claim is not well grounded. A. BRYANT Member, Board of Veterans' Appeals