BVA9504733 DOCKET NO. 88-56 185 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for headaches as secondary to Agent Orange exposure. 2. Entitlement to service connection for "hot and cold spells" as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from January 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1987 rating decision of the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office (RO), which denied claims of entitlement to service connection for headaches and "hot and cold spells" as secondary to 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 Department of Veterans Affairs for revision of the regulation in accordance with the ruling of the Court. A September 1989 Board decision remanded the issues of entitlement to service connection for headaches and "hot and cold spells" as secondary to Agent Orange exposure to the RO to be held in abeyance pending the promulgation of regulations pertaining to Agent Orange exposure, as required by Nehmer. Final regulations were promulgated by VA in February 1994, and the RO, in an April 1994 rating decision, has again denied the appellant's claim after considering the new regulations. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he was exposed to Agent Orange while he was in Vietnam. He believes that Agent Orange exposure caused him to develop headaches and "hot and cold spells." 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 the decision of the Board that the appellant has not submitted evidence of well-grounded claims for entitlement to service connection for headaches and "hot and cold spells" as secondary to Agent Orange exposure. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant had active service in Vietnam during the Vietnam era. 3. Headaches are not recognized by the VA as etiologically related to exposure to herbicide agents used in Vietnam. 4. No evidence has been submitted other than the appellant's allegations indicating that his headaches are related to service, or are due to any in-service occurrence or event, including Agent Orange exposure. 5. "Hot and cold spells" are not recognized by the VA as etiologically related to exposure to herbicide agents used in Vietnam. 6. No evidence has been submitted other than the appellant's allegations indicating that his "hot and cold spells" are related to service, or are due to any in-service occurrence or event, including Agent Orange exposure. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for headaches as secondary to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5107(a) (West 1991); 38 C.F.R. §§ 3.307(a), 3.309(e) (1994). 2. The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for "hot and cold spells" as secondary to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5107(a) (West 1991); 38 C.F.R. §§ 3.307(a), 3.309(e) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered at the outset of the analysis of any issue is whether the appellant's claim is well- grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The United States Court of Veterans Appeals (Court) has said that the statutory "duty to assist" under 38 U.S.C.A. § 5107(a) (West 1991) does not arise until there is a well-grounded claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (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). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). 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 an 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)(iii) (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). Notwithstanding the foregoing, 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). However, the Court has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). I. Headaches In this case, the evidentiary assertions as to the claim of service connection for headaches as secondary to Agent Orange exposure, as incurred in or aggravated by military service, are inherently incredible when viewed in the context of the total record. Review of the appellant's service medical records reveals no complaint, symptomatology, or finding of a headache disorder. A July 1969 separation medical examination demonstrated normal clinical evaluation with no defects listed other than identifying body marks and scars. At a February 1987 VA medical examination, the appellant complained of having experienced headaches. He reported that he had received injuries to his head, left ribs, and back in 1983 when a policeman had beaten him, and he stated that since that time he had been "having trouble with his head." A physician who conducted the appellant's neurological examination reported that the appellant had been an alcoholic for many years and drank practically every day. It was also reported that the appellant had complained of having a headache during the examination. However, the physician opined that the appellant "was very obviously not in any distress," and the physician noted that the appellant's cranial nerves, reflexes, motor power, sensory perception, and coordination were normal and that there was no evidence of any neurological illness. An x-ray of the appellant's skull, performed in February 1987, showed no evidence of fracture. Although the appellant reported at an August 1993 VA medical examination that he had been having headaches and dizziness for 10 years preceding that medical examination, no abnormal neurological finding was listed in the record of physical examination. In this case, there is no competent medical evidence suggesting a connection between the appellant's presumed herbicide exposure while in Vietnam and his headaches. His assertions of medical causation alone are not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). 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 an in-service event or occurrence, or where the disorders are 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 headaches, that disorder is 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 headaches, the claim is not well-grounded, and must be dismissed. II. "Hot and Cold Spells" In this case, the evidentiary assertions as to the claim of service connection for "hot and cold spells" as secondary to Agent Orange exposure, as incurred in or aggravated by military service, are inherently incredible when viewed in the context of the total record. Review of the appellant's service medical records reveals no complaint, symptomatology, or finding of "hot and cold spells." A July 1969 separation medical examination demonstrated normal clinical evaluation with no defects listed other than identifying body marks and scars. Although the appellant had reported to a physician at a February 1987 VA medical examination that he had experienced "hot sweats" in the winter and "cold sweats" in the summer, the record did not indicate any abnormal finding related to the appellant's complaints. There was no complaint, symptomatology, or finding of "hot and cold spells" at an August 1993 VA medical examination. In this case, there is no competent medical evidence suggesting a connection between the appellant's presumed herbicide exposure while in Vietnam and his alleged "hot and cold spells." His assertions of medical causation alone are not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). 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 an in-service event or occurrence, or where the disorders are 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 "hot and cold spells," that disorder is 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 "hot and cold spells," the claim is not well-grounded, and must be dismissed. III. Additional Consideration The 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 in May 1987 and April 1994 with respect to the issues of entitlement to service connection for headaches and "hot and cold spells" as secondary to Agent Orange exposure. ORDER Well-grounded claims for service connection for headaches and "hot and cold spells" due to herbicide exposure not having been submitted, the claims are dismissed, and the rating decisions in May 1987 and April 1994 are vacated insofar as they deny service connection for headaches and "hot and cold spells" secondary to Agent Orange exposure. 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.