BVA9503289 DOCKET NO. 91-21 069 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for sarcoidosis. 2. Entitlement to service connection for sarcoidosis secondary to exposure to Agent Orange. 3. Entitlement to service connection for a soft-tissue carcinoma secondary to exposure to Agent Orange. 4. Entitlement to service connection for non-Hodgkin's lymphoma secondary to exposure to Agent Orange. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from November 1969 to July 1972. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a December 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Paul, Minnesota. In June 1992, on the basis of directions given by the United States District Court, in Nehmer v United States Veterans Administration, 712 F.Supp. 1404 (N.D. Cal., May 2, 1989), the case was remanded to the RO. The RO was instructed to hold the case in abeyance until rules and regulations could be established by the VA governing the adjudication of claims for service connection disability compensation based on exposure to a herbicide containing dioxin. Then in April 1994, the RO, applying the newly established rules and regulations regarding dioxins, denied the veteran's claim, and the claims file was forwarded to the Board for appellate consideration. REMAND The veteran contends that while in Vietnam he was exposed to chemical dioxins such as Agent Orange. He maintains that as a result of that exposure, he has developed a pulmonary condition for which he should receive VA compensation benefits. Specifically, he claims that he developed sarcoidosis secondary to his exposure to Agent Orange. Alternatively, he maintains that he has also been diagnosed as suffering from soft-tissue sarcomas and lymphomas, and that these disabilities should be recognized as disabilities caused by his service in Vietnam. A review of the record reveals that the most recent medical record that documents any type of treatment for any condition is dated in 1981. It further appears that no attempt has been made by the RO to obtain any additional records that would document the treatment of the claimed service-related disabilities. The Court of Veterans Appeals (the Court) has repeatedly held that the duty to assist includes obtaining relevant records from private physicians, especially where it is necessary to determine the exact disability suffered from by the veteran. See 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.159 (1994); Olson v. Principi, 3 Vet.App. 480 (1992); Butts v. Brown, 5 Vet.App. 532 (1993); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 80 (1990). Therefore, we believe that the veteran's entire medical record showing treatment for sarcoidosis, any soft-tissue carcinomas, and non-Hodgkin's lymphoma should be obtained before further adjudication. We would further add however that possibly these claims may not be well-grounded. In Murphy v. Derwinski, 1 Vet.App. 78 (1990), the Court has stated that a well-grounded claim is one that is plausible and meritorious. This means that the evidence presented should reveal that there was an injury or disease while in service and that there is currently a disability involving that same injury or disease, i.e., that there is some medical link between the current disability and the injury or disease in service. If this is not present, then the RO, and, if appealed, the Board, has a duty to find that the claim is not well-grounded and dismiss it. When a claim is found to be not well-grounded and is dismissed, the veteran is, in effect, put on notice that the claim is defective. However, he is not penalized in that no denial of his claim is made by the Board. The veteran may submit additional evidence that would make his claim plausible and, because there is no final denial by the Board on record, he is not required to reopen the claim. The Court is concerned that VA not expend time and money in processing implausible claims. See Grivois v. Brown, 6 Vet.App. 136 (1994). Thus, during the remand process, the RO should also determine whether the veteran has submitted a well-grounded claim concerning the issues of service connection for soft-tissue carcinoma, sarcoidosis, and non-Hodgkin's lymphoma secondary to exposure to Agent Orange. The Board would further add that in order to receive VA compensation benefits, the veteran must have an actual disability or disease for which compensation may be provided. 38 C.F.R. 3.303 (1994). Under 38 U.S.C.A. § 5107(a) (West 1991), the appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. See also Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran for the names and addresses of all physicians who have treated him for his sarcoidosis since 1975. He should also be asked for the names and addresses of any physicians who have treated him for any type of soft- tissue carcinomas and non-Hodgkin's lymphoma. Upon receiving this information, along with record release statements by the veteran, the RO should obtain and associate with the claims folder all treatment records of the veteran from such health care providers. Of interest are any progress notes, special studies, x-ray films, laboratory tests, and technicians' reports of the veteran's treatment and diagnosis. Additionally, the RO should request that any biopsy results and tissue slides made of the diseased organs be forwarded to the RO for inclusion in the claims folder. If no records exist, it should be so noted in the record on appeal. 2. Upon receipt of all of the above requested information, the RO should schedule the veteran for a special internal medicine examination. The purpose of this examination is to determine whether the veteran now suffers from any type of disease or disability related to exposure to chemical dioxins. All indicated special studies, including blood tests, should be accomplished and the examiner should set forth reasoning underlying the final diagnosis. The claims folder and this Remand are to be made available to the examiner for review prior to the examination. Following completion of the requested development, the veteran's claims should be readjudicated, with consideration given as to whether they are well-grounded. If the decision remains unfavorable, he and his representative should be given a supplemental statement of the case and allowed sufficient time for a response. Thereafter, the claim should be returned to the Board for further consideration. No action is required of the veteran until he is contacted by the regional office. The purpose of this REMAND is to ensure due process and to obtain additional clarifying medical evidence. 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 assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).