Citation Nr: 0000050 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 95-09 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for disabilities, to include a skin condition, as due to exposure to herbicide agents. 2. Whether a timely notice of disagreement was filed from a November 1993 rating decision. REPRESENTATION Appellant represented by: James W. Stanley, Jr., Attorney WITNESSES AT HEARING ON APPEAL Appellant and wife of Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from November 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) by means of rating decisions rendered by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) in November 1993 and April 1994. FINDINGS OF FACT 1. The veteran's skin disability has been diagnosed as seborrheic dermatitis. 2. 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 cancer; and soft- tissue sarcoma are not currently shown. 3. In November 1993, the RO mailed notice to the veteran of denial of several claims of service connection for various disabilities as well as a denial of a compensable rating for flat feet. 4. The November 1993 notice of denial was incorrectly addressed. 5. A notice of disagreement of the November 1993 rating action was received by the RO in January 1995. CONCLUSIONS OF LAW 1. A claim for service connection for disability due to herbicidal exposure is not well grounded. 38 U.S.C.A. § 5107 (a) (1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (1999). 2. The notice of disagreement of the November 1993 denial, received in January 1995, was timely filed. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.201, 20.302 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question that must be resolved with regard to each claim is whether the appellant has presented evidence that each claim is well grounded; that is, that each claim is plausible. If he has not, the appeal fails as to that claim, and the Board is under no duty to assist him in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). I. Herbicide Exposure The law provides that "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." 38 U.S.C.A. § 5107(a) (West 1991). In order to establish a "well grounded" claim for service connection for a particular disability, the veteran needs to provide evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible or meritorious on its own and capable of substantiation. Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Board notes that service connection may be established for a current disability that has not been clearly shown in service where there is a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service is shown. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The Board concludes that medical evidence is needed to lend plausible support for the issues presented by this case because they involve questions of medical fact requiring medical knowledge or training for their resolution. Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also Layno v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The veteran contends that he has current disabilities, including a skin condition, that he attributes to herbicide exposure while serving on active duty in Southeast Asia during the Vietnam Conflict. After a review of the evidence the Board finds that he has failed to submit a well-grounded claim. Accordingly, his claim for service connection for disability due to herbicide exposure fails. A veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 and who currently has one or more certain prescribed chronic diseases, shall be presumed to have been exposed during service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to an herbicide agent during such service. 38 C.F.R. § 3.307 (a)(6)(iii) (1999). The diseases that are afforded presumption due to herbicide exposure are 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 cancer; and soft-tissue sarcoma. 38 C.F.R. § 3.309 (e) (1999). These prescribed diseases must become manifest to a compensable degree at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy must become manifest to a compensable degree within one year after the last date of exposure to herbicide agents during active service, and respiratory cancers must become manifest to a compensable level within 30 years after the last date of exposure to herbicide agents during active service. 38 C.F.R. § 3.307 (a)(6)(ii) (1999). The veteran's DD 214, Certificate of Discharge, indicates that he served on active duty in Southeast Asia during the Vietnam Conflict. Accordingly, under the regulations if (1) he currently has a disability or disabilities set forth under § 3.309 (e); and (2) such disability became manifested to a compensable degree within the period of time set forth under § 3.07 (a)(6)(ii), inservice occurrence of his disability is presumed. As set forth above, a well-grounded claim for service connection for disability due to exposure to herbicide agents, to include Agent Orange, under a presumptive basis, requires clinical evidence of one or more of the following chronic disabilities: 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 cancer; and soft-tissue sarcoma. A review of the evidence does not show that the veteran has any of the disabilities for which presumptive service connection may be applied. Accordingly, the veteran's claim for service connection for disability resulting from exposure to Agent Orange fails. A November 1992 VA examination report indicates that the veteran has a diagnosis of seborrheic dermatitis. At hearings before RO hearing officers in October 1997, April 1998, and October 1998, the veteran testified that he was exposed to herbicides while serving in Vietnam and that he believed that he developed a skin condition related to this exposure. He indicated that he sought treatment from a private medical doctor, who is now deceased, after service. The doctor could not offer a diagnosis of the condition, but treated the veteran with shampoo. The veteran stated that his private physician referred him to the Little Rock VA Medical Center (VAMC) in 1970 or 1971; however, the VAMC has no record of treatment during that time. The Board notes that at a hearing before the undersigned Board Member sitting at the RO in October 1999, the veteran indicated that he was obtaining treatment from VA for a skin condition. When asked what diagnosis had been rendered for his skin condition, he replied that the doctors "never did get back with me on that." He indicated that he was taking medicated skin cream for his disability. The veteran contends that he developed a skin reaction to chemicals used to clear brush and vegetation around the barracks. He indicated that he experienced itching, but did not seek medical treatment while in service. While the evidence shows that the veteran currently has a skin condition diagnosed as seborrheic dermatitis, this condition is not a disability for which the presumption provisions apply. 38 C.F.R. § 3.309 (1999). The Board notes that the veteran, while entirely competent to report his symptoms both current and past, has presented no clinical evidence or medical opinion that would establish a link between his current dermatitis and exposure to Agent Orange. In the absence of evidence indicating that the veteran has the medical knowledge or training requisite for the rendering of clinical opinions, the Board must find that his contentions with regard to the etiology of any current skin disability to be of no probative value. See Moray v. Brown, 5 Vet. App. 211 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Since, as previously discussed, presumptive service connection due to exposure to herbicidal agents cannot be granted for a disease or disability that is not listed under the regulations, the Board must find that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual at this time that service connection for disability, to include a skin condition, attributed to Agent Orange exposure could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991). See also Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). The Board notes that in a December 1997 statement, the veteran, by and through his representative: [A]dmits that his claim for service connection for skin disorder is not well grounded because he has no evidence linking up the current disorder[,] excema[,] with exposure to herbicides. Without such evidence[,] his claim is simply not well grounded pursuant to [regulatory law]." The Board agrees. Accordingly, the Board finds that the veteran's claim with respect to service connection for disability due to exposure to Agent Orange is not well grounded and is therefore denied, in accordance with the Court's decision in Edenfield v. Brown, 8 Vet. App. 384 (1995). The Board also notes that the Court has held that, when a claimant fails to submit a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence required to complete his or her application, in circumstances in which the claimant has referenced other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App. 341 (1996) and McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997) (per curiam). The Board also notes that its duty to assist the veteran in the development of his claim, as stipulated in 38 U.S.C.A. § 5107(a) (West 1991), does not arise until a claim is shown to be well grounded. There is no indication in the claims folder, nor has the veteran alleged, that any additional evidence exists to support a diagnosis of 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 cancer; and soft- tissue sarcoma. The Board must also point out that the veteran is free to submit new and material evidence, and reopen his claim for service connection for disability due to exposure to herbicide agents, at any time. II. Timeliness of Notice of Disagreement Under VA regulations, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a notice of disagreement. While special wording is not required, the Notice of Disagreement (NOD) must be in terms that can reasonably be construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (1999). Except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a notice of disagreement with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. Questions as to timeliness or adequacy of response shall be determined by the Board of Veterans' Appeals. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1999). The regulations provide that an NOD postmarked before the expiration of the one year period will be accepted as timely filed. If no NOD is filed within the prescribed period, the action or determination by the agency of original jurisdiction shall become final and the claim will not thereafter be reopened or allowed, except as may be provided by regulations not inconsistent with Title 38, United States Code. 38 U.S.C.A. § 7105 (b)(1)(c) (West 1991). When any written document is required to be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. In calculating this 5-day period, Saturdays, Sundays and legal holidays will be excluded. In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. § 20.305 (1999). A review of the pertinent facts in this case indicates that the veteran submitted a claim for benefits for service connection for various disabilities in August 1992. In November 1993, the RO issued a rating action denying all of his claims except that of service connection for flat feet. On November 17, 1993, notice of denial of the veteran's claims and assignment of a noncompensable evaluation for flat feet was mailed to the veteran. However, the veteran's address was misidentified in the November 1993 notice. His box number was incorrectly identified as 934. His correct box number was 93A. The veteran submitted a NOD with the November 1993 decision, dated in November 9, 1994, to the Board, rather than the RO. The evidence does not show when the NOD was received by the Board; however, the NOD was forwarded to the RO which received it on January 11, 1995. The NOD indicates that the veteran had knowledge of, and/or received notice of the November 1993 decision; however, the evidence does not show the date that he received actual notice of the decision. As it was incorrectly addressed, the Board cannot be assured that the veteran received the notice of denial when originally mailed. Accordingly, giving the benefit of the doubt to the veteran, the Board concludes that there was no proper notice; therefore, the veteran's NOD received by the RO in January 1995 was timely filed. As a timely NOD has been submitted, further development of the issues contained in the November 1993 rating action is required. (See REMAND, below). ORDER Service connection for disability due to exposure to herbicides, to include Agent Orange, is denied. The veteran has submitted a timely notice of disagreement of the November 1993 rating action. REMAND As set forth above, the notice of disagreement received by the RO in January 1995 is timely as to the November 1993 rating action. Accordingly, further development of the case is required. Specially, it is imperative that a statement of the case be issued for those issues which the veteran appeals. See 38 C.F.R. § 20.201 (1999). Under the Court's holding in Manlincon v. West, 12 Vet. App. 238 (1999), the NOD initiated review by the Board of the RO's denial of the claim, and the case must be remanded to have the RO issue a Statement of the Case regarding the appealed claims. Accordingly, the case is REMANDED for the following development: 1. The RO should contact the veteran and ask him to identify with specificity which, if any, issues he wishes to appeal from the November 1993 rating action. 2. With respect to each issue identified by the veteran, the RO should furnish to the veteran and his representative a Statement of the Case summarizing the law and evidence relied on in the determination of this claim. The RO should also inform the veteran of his appellate rights with respect to this claim. The Board expresses its gratitude in advance to the RO for assisting in the requested development. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to ensure compliance with due process considerations. No inference should be drawn regarding the final disposition of this claim. MARK W. GREENSTREET Member, Board of Veterans' Appeals