BVA9504781 DOCKET NO. 89-25 638 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a lung disorder, secondary to Agent Orange exposure. 2. Entitlement to service connection for an eye disorder, secondary to Agent Orange exposure. 3. Entitlement to service connection for a gastrointestinal disorder, secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The record reflects that the appellant had active military service from September 1947 to January 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a September 1987 rating decision by the Department of Veterans Affairs (VA) Cleveland, Ohio, Regional Office (RO), which denied entitlement to service connection for lung, eye, and gastrointestinal disorders, as not being incurred in service or the result of Agent Orange exposure. However, in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989), a United States District Court voided all benefit denials under 38 C.F.R. § 3.311a, the "dioxin" (Agent Orange) regulation, which was promulgated under the "Dioxin and Radiation Exposure Compensation Standards Act," 38 U.S.C.A. § 1154(a) (West 1991), and remanded the case to the VA for revision of the regulation in compliance with the ruling by that United States District Court. This case was REMANDED to the RO by the Board in December 1989, and was held in abeyance at the RO pending the promulgation of regulations pertaining to Agent Orange exposure, as required by Nehmer. Final regulations were promulgated by the Secretary of the Department of Veterans Affairs (VA) in February 1994, and the RO, in an August 1994 rating decision, has again denied the appellant's claims after considering the new regulations. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he has lung, eye, and gastrointestinal disorders that developed as a result of his exposure to Agent Orange while serving in Vietnam during the Vietnam War. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is also the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims of entitlement to service connection for lung, eye, and gastrointestinal disorder are well- grounded. FINDINGS OF FACT 1. The appellant had active military service in Vietnam during the Vietnam era. 2. A pneumothorax is not a disability recognized by the VA as causally related to exposure to herbicide agents used in Vietnam. 3. A pneumothorax in service is shown to have been acute and transitory and to have resolved without residuals. 4. Conjunctivitis, cataracts, presbyopia, and hyperopia are not disabilities recognized by the VA as causally related to exposure to herbicide agents used in Vietnam. 5. Conjunctivitis in service is shown to have been acute and transitory and to have resolved without residuals. 6. A left eye cataract was initially manifested many years after service. 7. Hyperopia is an error of refraction. 8. Presbyopia is a developmental disorder manifested by hyperopia and impairment of vision due to advancing years or old age. 9. No evidence has been submitted which indicates that the appellant has a lung disorder that is related to service, or is due to any in-service occurrence or event, including Agent Orange exposure. 10. Although there is evidence of record indicating the initial manifestations of a left eye cataract, hyperopia, and presbyopia many years after service, no evidence has been submitted which indicates that the appellant has an eye disorder that is related to service, or is due to any in-service occurrence or event, including Agent Orange exposure. 11. Although there is medical evidence of record indicating the initial manifestations of gastrointestinal disability many years after the appellant's retirement from service, no evidence has been submitted which indicates that this condition is related to service, or is due to any in-service occurrence or event, including Agent Orange exposure. CONCLUSIONS OF LAW 1. The appellant has not submitted a well-grounded claim for service connection for a lung disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303(b), 3.307(a)(6), 3.309(e) (1994). 2. The appellant has not submitted a well-grounded claim for service connection for an eye disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303(c), 3.307(a)(6), 3.309(e) (1994). 3. The appellant has not submitted a well-grounded claim for service connection for a gastrointestinal disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1994). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (1994). A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (1994) will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 38 C.F.R. § 3.309(a) (1994) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991); 38 C.F.R. § 3.307(a) (1994). 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) (1994) 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) (1994) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Non-Hodgkin's lymphoma; Porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1994). The United States Court of Appeals for the Federal Circuit recently determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, No. 93-7107 (Fed. Cir. Sept. 1, 1994). In that case, the Court held that the list of radiogenic diseases contained in 38 C.F.R. § 3.311b (1993) only served to lift the burden of showing actual causation for veterans falling within the presumptive parameters. Id. The Court held that service connection could also be established by the more onerous route of showing actual causation, and that insofar as the regulatory scheme attempted to limit service connection to the listed radiogenic diseases, it was contrary to the Radiation Compensation Act. Id. As noted above, regulations previously promulgated pursuant to that Act which pertained to Agent Orange exposure residuals were voided by Nehmer. Additional regulations have been promulgated, pursuant to the Agent Orange Act of 1991, Public Law 102-4, 105 Stat. 11 (1991), which list specific diseases for which a causal link to herbicide exposure is presumed. We are of the opinion that the Court's holding in Combee must also be applied to cases involving herbicide exposure. See, 38 C.F.R. § 3.303(d), (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) (1994). The threshold question to be answered at the outset of the analysis of any issue is whether a well-grounded claim has been submitted; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A veteran has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). If a particular claim is not well-grounded, then the appeal fails, and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where such assertions are inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the evidentiary assertions with regard to the appellant's claims of entitlement to service connection for lung, eye, and gastrointestinal disorders, secondary to Agent Orange exposure, are inherently incredible when viewed in the context of the total record. Service medical records show that the appellant was treated in February and March 1948 for a spontaneous pneumothorax. Subsequently dated service medical records show no additional complaints or treatment of any lung disorder. The appellant's retirement medical examination, conducted in June 1967, revealed normal findings for the lungs, and the appellant had no complaints of any lung disorder. A chest X-ray in July 1967, taken in conjunction with the appellant's retirement examination, was negative. A VA medical examination in June 1987 revealed that the appellant's lungs were clear to auscultation and that there was normal expansion of the lungs. The diagnosis was status post pneumothorax in 1948, without residuals. Service medical records show that the appellant was treated on one occasion in June 1965 for conjunctivitis. No other eye disorders were treated in service. At the June 1967 retirement medical examination, evaluation of the eyes revealed normal findings, and the appellant had no complaint of any eye disorder. His visual acuity at the retirement examination was 20/20 for both distant and near vision. Medical records from a military medical facility, dated from 1982 to 1987, show that the appellant underwent cataract surgery on his left eye in April 1983. Evaluation of the appellant's visual acuity at the June 1987 VA medical examination revealed that he had hyperopia (error of refraction) and presbyopia (a developmental disorder manifested by hyperopia and impairment of vision due to advancing years or old age). See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 795 and 1352 (27th ed. 1985). Service medical records show no complaint or diagnosis of any gastrointestinal disorder. The June 1967 retirement medical examination showed normal findings for the abdomen, with the exception of a one inch well-healed, non-symptomatic surgical scar in the right lower quadrant from an August 1964 hernia repair. The initial clinical manifestation of any gastrointestinal disorder is shown in the medical records from a military medical facility, dated in the 1980's, which include diagnoses of gastrointestinal bleed, gastritis, duodenitis, gastric ulcer, ascites, and esophageal varices. The June 1987 VA medical examination listed diagnoses of esophageal varices, gastritis, and abdominal ascites, secondary to liver disease caused by alcohol abuse. There is nothing in the clinical evidence that shows the presence of a chronic lung disorder, a chronic eye disorder, or a gastrointestinal disorder during service or for many years following the appellant's separation from service, or that suggests any of these disabilities are etiologically related to any in-service-connected incident, including Agent Orange exposure. See Rabideau v. Derwinski. 2 Vet.App. 141 (1992). Therefore, even though the medical evidence shows that the appellant received treatment for a spontaneous pneumothorax in 1948, and for conjunctivitis on one occasion in service, there is no evidence of current disability related to either of those acute disabilities. Although he has received treatment for a left eye cataract in April 1983 and gastrointestinal disabilities in the 1980's, there is no objective evidence of medical causality from any incident in service or any service-connected disability, and as such, those claims are not well-grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994). The appellant lacks medical expertise and is not qualified to render an opinion regarding a causal relationship between his respiratory and eye disorders and any claimed in-service onset. See Espiritu v. Derwinski 2 Vet.App. 492 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93, (1993). Where the determination issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Id. Where there is no medical evidence of the claimed disorder during service, where there is no medical evidence linking the claimed disorder to service or to an in-service event or occurrence, or where the disorder is not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Although the appellant argues that his exposure to Agent Orange while in Vietnam, which is presumed for a veteran who served in the Republic of Vietnam during the Vietnam era and who has a disease listed at 38 C.F.R. § 3.309(e) (1994) (38 C.F.R. § 3.307(a)(6)(iii) (1994)), resulted in the development of his gastrointestinal disorders and his eye disorders, those disorders are not recognized as one of the diseases attributable to Agent Orange exposure. Consequently, in the absence of competent evidence of medical causation between Agent Orange exposure and the appellant's gastrointestinal and eye disorders, those claims, as well as the claim for a lung disorder, where no lung disorder currently exists, are not well-grounded, and must be dismissed. The United States Court of Veterans Appeals (Court) has expressed its concern that, in a situation in which the claim is not well- grounded, a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because such reopening would require the submission of new and material evidence. The Court has deemed it appropriate, where a decision was made on the merits with respect to a claim that was not well-grounded, to recognize the nullity of the prior decision and allow the appellant to begin, if he can, on a clean slate. Grottveit v. Brown, 5 Vet.App. at 93 (1993). In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994) not attach to the rating decisions of September 21, 1987, and August 25, 1994. ORDER Having found the claims of entitlement to service connection for lung, eye, and gastrointestinal disorders, secondary to Agent Orange exposure, to be not well-grounded, the appeal is dismissed, and the rating actions of September 21, 1987, and August 25, 1994, are vacated. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been so assigned. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue that was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.