Citation Nr: 0004949 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-00 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of exposure to Agent Orange (AO). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The RO denied service connection for PTSD and for residuals of AO exposure. The issue of entitlement to service connection for PTSD is addressed in the remand portion of this decision. The Board notes the veteran submitted a substantial quantity of evidence subsequent to his appeal having been forwarded to the Board for appellate review. His representative at the Board has waived initial consideration of this evidence by the RO. A remand to comply with the requirements of 38 C.F.R. § 20.1304 (1999) is therefore not warranted. The veteran withdrew in writing a previous request for a hearing before a travel Member of the Board at the RO. FINDING OF FACT The claim of entitlement to service connection for residuals of exposure to AO is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for residuals of exposure to AO is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Review of the service medical records discloses that there were no complaints of, diagnosis of or treatment for any disorders which on the basis of competent medical authority was linked to AO exposure. In April 1968 the veteran was treated for sores on the body and noted to have possible tonsillitis. In August 1968 he cut his finger. No pertinent abnormalities were noted on the report of the separation examination conducted in August 1968. On the Report of Medical History portion of the exit examination the veteran denied having skin problems. A private treatment record dated in July 1977 shows the veteran underwent a left subcutaneous mastectomy or excision of gynecomastia due to a left gynecomastia. On the report of an AO examination it was noted that the veteran reported he had been exposed to AO while serving in Vietnam. He had lumps removed from his breasts in 1975 and 1982. The veteran was informed the lumps were non-malignant. Folliculitis was diagnosed. VA outpatient treatment records have been associated with the claims files. The records evidence treatment for hypertension, situational anxiety, actinic keratosis, post- excision non-malignant masses of both breasts, headaches secondary to stress, bursitis of the right wrist, upper respiratory infection, pharyngitis, small nodule on knee which was unlikely a cyst, left knee cyst, coronary artery disease, PTSD, dermatitis of the hands and feet, a possible benign appearing lesion on the right lumbar muscles which was possibly a sub-muscular mass, thyroglossal duct cyst, and lipomas. None of the records include competent medical opinions linking any of these disorders to active duty or to AO exposure. The report of a February 1991 VA examination is of record. The veteran alleged a history of AO exposure in 1968 while serving in Vietnam. He reported he had a cyst removed in 1980 and also had bumps on his back and chest, a tender nodule on the right wrist for five or six months, a history of acne and peeling hands. The assessment was history of well healed cysts of the right breast with scars, folliculitis and probable ganglion cyst of the right wrist. A partial record from the Pain and Stress Center dated in November 1991 included a notation that the veteran was seeking treatment for pain in his neck, low back, left knee, anxiety, depression and alcoholism as a result of what he considered harassment at work. Private treatment records from the Los Angeles County Department of Mental Health evidence diagnoses of major depression as a result of job stressors. VA examinations conducted in July 1995 included a diagnosis of dysthymia. A September 1996 VA consultation sheet includes a notation under the reasons for request that the veteran had a acne/dermatitis of the hands and feet which were questionably related to AO. Criteria Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "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." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). A claimant does not meet this burden by merely presenting lay opinion evidence because lay persons are not medical health professionals and such opinions do not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions of medical causation cannot constitute cognizable evidence, which would render a claim well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). 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. King v. Brown, 5 Vet. App. 19, 21 (1993). The Court has held that if the veteran fails to submit a well-grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159(a) (1999). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show 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, there is no requirement of evidentiary showing of continuity. 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) (1999). Regulations provide that 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). The law and regulations regarding service connection provide that a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) (1999) will be considered to have been incurred in service under the circumstances outlined in that section, even though there is no evidence of such disease during such period of service. 38 C.F.R. § 3.307(a) (1999). If an appellant was exposed to a herbicide agent during such 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 was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1999) are also satisfied: Chloracne or other acneiform disease consistent with chloracne; Hodgkin's disease; non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; Porphyria cutanea tarda; Prostate cancer; Multiple myeloma; Respiratory cancers (cancers of the lung, bronchus, larynx or trachea); or Soft tissue sarcoma. 38 C.F.R. § 3.309(e) (1999). 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 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 or other disease consistent with chloracne, and porphyria cutanea tarda shall have become 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 appellant was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The Secretary has also determined that there was no positive association between exposure to herbicides and any other condition for which he has not specifically determined that a presumption of service connection is warranted. 59 Fed. Reg. 57589 (1996) (codified at 38 C.F.R. §§ 3.307, 3.309). Additionally, it has been held that in order to be entitled to the presumption of service connection for herbicide exposure, the veteran must have been diagnosed to have one of the conditions enumerated in either 38 U.S.C.A. § 1116(a) or 38 C.F.R. § 3.309(e). McCartt v. West, 12 Vet. App. 164, 168 (1999). Notwithstanding the foregoing, 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 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 3 F.3d 1039 (Fed. Cir. 1994). The veteran could also seek presumptive service connection on another ground if applicable. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The veteran has claimed general entitlement to service connection for residuals of exposure to AO in service. Although he was requested to specify the nature of the disorders he was claiming were due to AO, he never responded. He has tangentially discussed a number of disorders, but has never formally identified any of them as being secondary to his claimed AO exposure. The record shows that he was previously denied entitlement to service connection for a skin disorder as secondary to AO exposure. As he has not been specific as to which disorder or disorders have resulted from claimed AO exposure, and has only intimated that he may have unspecified prostate and/or skin disorders, the Board has construed his claim as general in nature and without regard to the previous specified denial of service connection for residuals of AO exposure limited to a claimed skin disorder. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the appellant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the appellant has failed to meet this burden, the Board finds that his claim of entitlement to service connection for residuals of exposure to AO must be denied as not well grounded. The second and third prongs of the Caluza test may be met by evidence that a veteran with service in Vietnam has one of the disorders specified in either 38 U.S.C.A. § 1116(a) or 38 C.F.R. § 3.309(e); see Darby v. West, 10 Vet. App. 243, 246 (1997). In this case, the veteran has none of the enumerated diseases. He has been diagnosed with hypertension, situational anxiety, actinic keratosis, post-excision non- malignant masses of both breasts, headaches secondary to stress, bursitis of the right wrist, upper respiratory infection, pharyngitis, a small nodule on the knee which was unlikely a cyst, left knee cyst, coronary artery disease, PTSD, major depression, dysthymia, dermatitis of the hands and feet, a possible benign appearing lesion on the right lumbar muscles which was possibly a sub-muscular mass, thyroglossal duct cyst, lipomas, folliculitis, and a probable ganglion cyst of the right wrist. None of these disorders are presumptive disorders recognized as secondary to AO exposure. See McCartt, 12 Vet. App. at 168; Brock v. Brown, 10 Vet. App. 155, 162 (1997). The Court has held that where the issue involves medical causation (such as whether a current disability is the result of AO exposure) 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). The veteran's service medical records are silent as to treatment received for any disorders the veteran has been diagnosed with subsequent to his discharge from active duty. There is no competent evidence of record linking any of the currently diagnosed disorders to active duty including as secondary to AO exposure. A September 1996 consultation sheet includes the notation under the reasons for request that the veteran had acne/dermatitis of the hands and feet which were "questionably" related to AO. This record does not provide a competent link between the acne/dermatitis of the hands and feet to AO. The Board notes the possible link was questionable and is too speculative to warrant a grant of service connection. The Court held in Savage v. Gober, 10 Vet. App. 488 (1997), that the "continuity of symptomatology" provision of 38 C.F.R. § 3.303(b) may obviate the need for medical evidence of a nexus between present disability and service. See Savage, 10 Vet. App. at 497. The only proviso is that there be medical evidence on file demonstrating a relationship between the veteran's current disability and his post-service symptomatology, unless such a relationship is one as to which a lay person's observation is competent. The veteran has not alleged that he has had continuous symptomatology attributable to claimed exposure to AO from active duty to the present. The holdings in the Savage decision do not provide a basis for a grant of service connection. In short, the veteran has not demonstrated the presence of a chronic disorder in service or evidence of continuity of symptoms that would warrant further development under 38 C.F.R. § 3.303(b). Savage v. Gober, 10 Vet. App. 488 (1997); See Clyburn v. West, 12 Vet App 296 (1999); Grover v. West, 12 Vet. App. 109 (1999). The veteran has not presented or identified competent medical evidence linking any of his current disorders to active duty. The only evidence of record which shows that the veteran currently experiences residuals of exposure to AO is the veteran's own allegations and statements. The Board notes the veteran has not reported he has received any specialized medical training and is found to be a lay person. It is now well-established that the veteran, as a layperson, is not qualified to render medical opinions regarding the etiology of disorders and disabilities, and his opinion is entitled to no weight. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the absence of competent medical evidence of any disorder which has been linked to active service to include AO exposure, the veteran's claim of entitlement to service connection for residuals of exposure to AO must be denied as not well grounded. Pursuant to 38 U.S.C.A. § 5103(a), if VA is placed on notice of the possible existence of information that would render the claim plausible, and therefore well grounded, VA has the duty to advise the appellant of the necessity to obtain the information. McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 80 (1995). Such evidence must be identified with some degree of specificity; with an indication that the evidence exists and that it would well ground the claim. See Carbino v. Gober, 10 Vet. App. 507, 510 (1997). In this case, the veteran has not identified medical evidence that would make his claim well grounded. Therefore, 38 U.S.C.A. § 5103(a) is not applicable to the present case. The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete his application for service connection. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77- 78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER The veteran not having submitted a well grounded claim of entitlement to service connection for residuals of exposure to AO, the appeal is denied. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The RO properly developed this case for appellate review and forwarded it to the Board for appellate consideration. The veteran was advised that the case had been forwarded to the Board by RO letter, dated April 16, 1999. On June 29, 1999, the Board received additional medical evidence from the veteran concerning his PTSD claim as well as a statement detailing his in-service stressors. The veteran's stressor statement is pertinent to the claim of entitlement to service connection for PTSD and bears directly on the issue in appellate status, but has not been considered by the RO. Under 38 C.F.R. § 20.1304(c) (1999), any pertinent evidence submitted by the appellant directly to the Board within 90 days following notification to him of certification of the appeal and transfer of records to the Board must be referred to the RO for review and preparation of a supplemental statement of the case unless this procedural right is waived by the appellant. No such waiver was received in conjunction with the above-referenced material. The veteran's representative specifically requested that the issue be returned to the RO for consideration of the additional evidence submitted. The Board finds that further development is necessary in order to ensure full compliance with due process requirements. Pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999), the Board is deferring adjudication of the issue of entitlement to service connection for PTSD pending a remand of the case to the RO for further development as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should undertake a review of the entire evidence now of record including the materials submitted in June 1999. 3. After undertaking any further development deemed appropriate in view of the above evidence recently associated with the claims file, the RO should readjudicate the issue of entitlement to service connection for PTSD. If the benefit requested on appeal is not granted to the appellant's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be provided. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals