Citation Nr: 0001844 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 97-21 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of an injury to the right little finger, to include tendinitis. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a skin disorder to include as due to Agent Orange exposure. 3. Entitlement to a total rating based on individual unemployability as a result of service-connected disability (TDIU). (The issues of entitlement to service connection for a skin disorder on a secondary basis, entitlement to an increased initial evaluation in excess of 50 percent for post-traumatic stress disorder (PTSD), and entitlement to a permanent and total disability rating for pension purposes are the subject of a separate decision.) REPRESENTATION Appellant represented by: Jeffrey J. Bunten, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from February 1969 to February 1971. Review of the record shows that in December 1980, the Board of Veterans' Appeals (Board) denied entitlement to service connection for a skin disease to include as due to Agent Orange exposure. In a June 1988 decision, the Board confirmed and continued the denial. In an April 1996 decision, the Board determined, in pertinent part, that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a skin disorder. Three of the issues decided in the April 1996 Board decision were appealed to the U.S. Court of Appeals for Veterans Claims (Court); however, this issue was not appealed to the Court and in a February 1998 joint motion for remand, the VA General Counsel and the veteran's attorney not only agreed that the remaining portions of the April 1996 decision were not on appeal to the Court, but expressly requested that the Court affirm portions of the April 1996 decision including the issue whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for a skin disorder. The Court, in a March 1998 order, did not vacate the Board's decision on this issue and dismissed the appeal on this and other issues. Therefore, the Board's April 1996 decision is final as to the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a skin disorder. A November 1995 rating determination, in pertinent part, denied entitlement to service connection for flexion deformity of the fifth finger of the right hand. By a February 1997 rating action, service connection for chloracne claimed as secondary to Agent Orange was denied and it was determined that new and material evidence had not been submitted to reopen the claim for various skin disorders (alopecia and tinea) claimed as secondary to Agent Orange exposure. In a May 1997 rating action, the RO denied entitlement to TDIU. The veteran timely disagreed with the determinations and timely filed a substantive appeal. A Board decision issued in October 1998 remanded the issues. The claims return to the Board for appellate review at this time. The veteran's appeals with regard to the issues addressed in this decision were docketed in 1997. The Board notes that a separate decision, described on the title page of this decision, has been issued as to appeals docketed in 1990. The veteran requested a Travel Board hearing. That hearing was conducted in July 1999 by the undersigned Board member. The Board notes that, at his July 1999 Travel Board hearing, the veteran testified that he incurred a back disorder in service. His representative argued that this claim was inextricably intertwined with the claim for an award of TDIU, which is before the Board for appellate review at this time. The portion of an April 1996 Board decision which denied entitlement to service connection for a low back disorder is final. The Board also interprets the veteran's testimony as a request to reopen the previously-denied claim of entitlement to service connection for a back disorder. A decision as to the claim for TDIU is deferred, pending the RO's action on the request to reopen the claim for service connection for a back disorder, among other claims. The TDIU claim is addressed in the remand appended to this decision. FINDINGS OF FACT 1. There is no medical evidence that an injury to the right little finger that the veteran incurred in combat is etiologically related to a flexion deformity of the right little finger or extensor tendinitis of the right index finger. 2. By Board decisions in December 1980 and June 1988, service connection for a skin disorder, claimed as due to exposure to Agent Orange, was denied. In April 1996, the Board found that no new and material evidence had been submitted since the December 1980 Board decision to reopen the previously denied claim of entitlement to service connection for a skin disorder. 3. There is no medical evidence linking any current skin disorder to service or to exposure to a herbicide agent. 4. The additional evidence submitted subsequent to the April 1996 Board decision is not so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of entitlement to service connection for a flexion deformity of the right little finger or for right index finger tendinitis. 38 U.S.C.A. § 5107(a) (West 1991). 2. A Board decision rendered in April 1996 which determined that no new and material evidence had been submitted to reopen a claim of entitlement to service connection for a skin disorder is final. 38 U.S.C.A. §§ 5108, 7104 (West 1991). 3. The evidence received since the April 1996 Board decision is not new and material, and the veteran's claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he had current disability of fingers of the right hand due to an injury to his right little finger incurred in combat. He also claims that he has submitted new and material evidence to reopen a claim for service connection of a skin to include as due to exposure to Agent Orange. Service connection may be granted for disability resulting from disease or injury that was incurred in or aggravated by a veteran's active service, or may be granted for certain chronic diseases, if manifested to a degree of 10 percent or more within one year of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1153 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). A well-grounded claim may be established under the chronicity and continuity of symptomatology provisions of 38 C.F.R. § 3.303(b), where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumptive period and still has such condition. See Savage v. Gober, 10 Vet. App. 488, 493 (1997). Such evidence must be medical unless it relates to a condition as to which lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Id. Before the merits of a claim for service connection for a specific disorder may be addressed, the veteran must submit a well-grounded claim. To be well-grounded, a claim must be supported by evidence, not just allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Specifically, in most service connection claims, there must be: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and, (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Id. The truthfulness of the evidence is presumed for the purpose of determining whether a claim is well-grounded. Robinette v. Brown, 8 Vet. App. 69, 73-74 (1995). If the record fails to establish that the veteran's claim of entitlement to service connection is plausible, there is no duty to assist the veteran in the factual element of that claim. Epps v. Gober, 126 F.3d at 1468-1470. A veteran who served in Vietnam during specified periods of herbicide use may be presumed to have disability incurred in service if the veteran suffers from one of the presumptive diseases listed under 38 C.F.R. § 3.309(e). See McCartt v. West, 12 Vet. App. 169 (1999). The presumptive diseases include chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). If the veteran has not been medically diagnosed as having a disease listed in the regulation, the claimant must provide evidence establishing exposure to Agent Orange in order to satisfy the second element of Caluza (evidence of incurrence or aggravation of a disease or injury in service). McCartt, 12 Vet. App. at 167. Further, even if an appellant is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). However, as will be discussed below, where the issue involves such a question of medical causation, competent evidence which indicates that the claim is plausible is required to set forth a well-grounded claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). 1. Claim for Service Connection for Residuals of Injury to Right Little Finger A January 1969 private medical statement reflects that the veteran sustained an occupational injury to the dorsum of the left hand prior to service enlistment. The veteran's service medical records reflect that he complained of pain in the hand, possibly the right hand (the designation as to which hand is difficult to interpret) in March 1969. A "slight muscle spasm" was diagnosed and warm soaks were recommended. Later that same month, the veteran complained of pain in the right index finger, knuckle joint, for three weeks. He reported he had hit that finger against a wall. A finger splint was applied. The service medical records, including separation examination, are thereafter devoid of any compliant, treatment, or abnormality of the right hand. The summaries of VA hospitalizations in June 1973 and in August 1989, as well as the veteran's statements, hearing testimony, claims, and VA outpatient records prior to 1993 are devoid of medical or lay evidence of complaints, treatment, or diagnosis of a deformity or injury of the right little finger or of tendinitis or injury of the right index finger. The veteran, by statements submitted in October 1995 and in July 1996, alleged that an injury to the right little finger "was not set" when he was injured in blasts and explosions in Vietnam, and the finger had curved and drawn inward since. VA examination conducted in October 1993 disclosed a flexion deformity of the right little finger at the interphalangeal joint. It was flexed about 45 degrees. The veteran reported that he did not know how this injury occurred. The veteran had diminished strength in the right hand, as compared to the left, even though he was supposed to be right-handed. The veteran complained that, since 1991, he had been unable to work as a carpenter because pain in the right index finger and from the right index finger shooting up to the wrist made him drop his hammer. The examiner assigned a diagnosis of extensor tendinitis, right index finger, and diminished grip strength, right hand. VA examinations thereafter do not reflect assessment of the right little finger. On VA examination conducted in September 1996, upper extremity muscle strength was described as 5/5. The veteran has stated that he injured his right little finger in combat. Although not noted by his service medical records, by applying the provisions of 38 U.S.C. § 1154(b), the veteran's own lay testimony is sufficient to meet one requirement of establishing a well-ground claim that the veteran show evidence of disease or injury in service. Furthermore, post-service VA clinical evidence establishes a plausible claim that he has a current flexion deformity of the right little finger. The issue is whether he has any current right finger disorder which is related to a right finger injury in military service. However, the veteran has not provided any evidence, other than his own testimony, to link a current right finger condition to any of his in-service injuries. The veteran's own testimony cannot provide the required medical nexus because he lacks the necessary medical training to make such a determination. See Kessel v. West, 12 Vet. App. 477 (1999). In addition, the appellant's separation examination indicated that no right finger injury residual was present. Until the veteran submits evidence which establishes a relationship between his current right finger disorder and his military service, his claim cannot be considered well- grounded. The Board notes that VA advised the appellant on several occasions that he was required to submit evidence that he sustained residuals of a right finger injury in service. The Board is unaware of any information in this matter that would put the VA on notice that any additional relevant evidence may exist which, if obtained, would well ground the veteran's claim. See generally, McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). 2. Request to Reopen Claim for Service Connection for a Skin Disorder To Include As Due to Exposure to Herbicides By Board decisions issued in December 1980 and in June 1988, a claim for service connection for a skin disorder, to include a skin disorder due to exposure to Agent Orange, was denied. In an April 1996 decision, the Board, referencing the 1980 and 1988 decisions, found that the veteran had not submitted new and material evidence to reopen the prior claims. Those denials are final. 38 U.S.C.A. § 7104. Except as provided in 38 U.S.C.A. § 5108, a final decision by the Board may not thereafter be reopened and allowed, and a claim upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claimed shall reopened and former disposition of the claimed shall be renewed. 38 U.S.C.A. § 5108. To determine whether the veteran has submitted new and material evidence which would allow VA to reopen and readjudicate this claim, a three-step analysis must be applied. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999); Winters v. West, 12 Vet. App. 203 (1999). Under the three-part analysis now required, the first step is to determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) to reopen the prior claim. If so, the second step requires a determination of whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is not well grounded, the adjudication process must halt, despite reopening, because a claim that is not well grounded cannot be allowed. See Winters, supra. If the claim is well grounded, then VA must ensure that the duty to assist has been fulfilled before proceeding to the third step, and adjudication of the merits of the claim. In determining whether new and material evidence has been presented, "new" evidence is that which has not previously been submitted to agency decision makers, and is neither cumulative nor redundant. 38 C.F.R. § 3.156(a); see generally Hodge, supra. "Material" evidence is that which bears directly or substantially on the specific matter under consideration, and which by itself, or in conjunction with other evidence previously submitted, is so significant that it must be considered in order to fairly decide the merits of that claim. Id. The evidence considered by the Board in reaching the December 1980, June 1988, and April 1996 decisions included the veteran's service medical records and post-service VA clinical records. However, those records were negative for a chronic skin disorder at service discharge or thereafter, and there was no medical evidence of a medical diagnosis of chloracne. Additional evidence previously considered includes records from the Social Security Administration (SSA). Those records, including SSA examination conducted in April 1994, are devoid of medical evidence of or reference to a skin disorder or exposure to Agent Orange. An August 1994 psychiatric examination notes that the veteran was "obsessed" with exposure to Agent Orange. However, that note does not include a medical opinion that the veteran had any disorder as a result of exposure to Agent Orange. An October 1995 VA dermatologic examiner concluded that the veteran had prurigo nodularis, but that report did not include any reference to Agent Orange. Also previously considered by the Board was the veteran's testimony at a hearing on appeal which essentially set forth his contentions regarding his claims for service connection for a skin disorder. In April 1996, the Board rejected such testimony noting that although such was technically "new" it was not material to the claim due to the veteran's lack of medical expertise. Evidence added to the record since the April 1996 Board decision includes the report of a September 1996 VA skin examination; statements of the veteran submitted in support of his claim; copies of service medical records that were previously of record; the testimony provided by the veteran at a November 1997 hearing at the RO and at a July 1999 hearing before the undersigned member of the Board; and VA outpatient treatment records dated from November 1996 to January 1998. Clearly, the duplicate service medical records are not new and material. Likewise, the Board finds that the veteran's statement and testimony are essentially a reiteration of the statements, contentions and testimony provided by the veteran and considered in prior final Board decisions. Essentially, the veteran claims that the skin condition(s) that he has today are either related to the skin condition for which he received treatment in service or as a result of long-term exposure to Agent Orange. The September 1996 dermatologic examination report also reflects that the veteran's report that he was exposed to Agent Orange. However, there is no medical diagnosis of a skin disorder which either was related to service by the examiner or which may be presumed related to such exposure. Diagnoses of alopecia areata, acne, tinea cruris, and soft corns between the toes were rendered at that time. Dermatology outpatient clinic notes dated in April and July 1997 reflect that the veteran was treated for folliculitis. These records do not include an opinion relating any currently diagnosed skin disorder to service. The medical evidence of record establishes that the veteran has a skin disorder. However, the veteran's service medical records are devoid of any medical diagnosis of chloracne. Post-service clinical records are devoid of any medical diagnosis of chloracne, although other skin disorders are noted. However, those skin disorders are not among the disorders which may be presumed related to exposure to Agent Orange. The Board further notes that the service and post- service records are devoid of any medical diagnosis of chloracne or any disease which may be presumed related to exposure to Agent Orange. In the absence of such diagnosis, the veteran's exposure to Agent Orange may not be presumed, and the evidence that he has a current skin disorder or disorders is not "new" and "material" evidence which warrants reopening the claim for service connection for a disorder related to Agent Orange. McCartt, supra; Brammer v. Derwinski, 3 Vet. App. 223 (1992). The veteran was so informed in a statement of the case (SOC) issued in September 1997. Similarly, none of the competent medical evidence of record submitted since 1996 relates any other skin disorder to the veteran's service. Therefore, the claim must be denied. As discussed above, the current standards for determining whether evidence is new and material are based on a 1998 decision of the Federal Circuit Court of Appeals. The evidence of record, which reflects that the veteran was last notified in early 1998 that he had not submitted new and material evidence to reopen a claim for service connection for a skin disorder to include as due to Agent Orange, reflects that the prior standard, not the current standard for review of a request to reopen a claim, was used. However, the veteran has not presented additional evidence in this case which would demonstrate a nexus between his current skin disorder and exposure to Agent Orange directly or on a presumptive basis. Therefore, notwithstanding the RO's application of the prior standard for determining new and material evidence, a remand by the Board to the RO for readjudication of the issue of whether the veteran had presented evidence to reopen his claim for service connection for a skin disorder as due to exposure to Agent Orange would be a futile act, as the veteran still has not presented evidence sufficient to well-ground this claim. See Winters, 12 Vet. App. at 208 (the rule of prejudicial error requires that any error result in prejudice to the appellant; recognizes the principle that the law does not require a useless act); Elkins, 12 Vet. App. at 219 (where it is clear that veteran's underlying claim is not well grounded, there is no prejudice to the claimant if the claim is not remanded); see Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER The claim for service connection for residuals of an injury to the right little finger, to include tendinitis, is denied. New and material evidence not having been submitted, the request to reopen the claim for service connection for a skin disorder to include as due to exposure to Agent Orange is denied. REMAND As discussed above, the veteran's representative has argued that a claim for service connection for a back disorder is inextricably intertwined with a claim for TDIU, and the representative has, in essence, requested that adjudication of the claim for TDIU be deferred until the veteran's request to reopen the claim for service connection for a back disorder has been adjudicated. Also, as noted above, the Board has remanded, in a separate decision, a claim for an increased initial disability evaluation for PTSD. The outcome of that claim too may affect the veteran's claim for TDIU benefits. In the interests of judicial economy, the claim for TDIU should be readjudicated only after a determination on all pending claims for service connection and for increased evaluation of service-connected disability, including the claims addressed in a separate Board decision. Therefore, that claim is deferred pending readjudication of the remanded issues. In view of the foregoing, this case is REMANDED to the RO for the following action: 1. The RO should adjudicate the veteran's request to reopen his claim of entitlement to service connection for a low back disorder. The veteran should be provided notice of this determination and of his appellate and procedural rights. If the veteran files a timely notice of disagreement, the RO should ensure that the veteran is afforded the opportunity to complete all procedural steps necessary to advance an appeal before the Board in accordance with the provisions of 38 U.S.C.A. § 7105 (West 1991) and 38 C.F.R. § 20.200 (1999). 2. After all pending claims before the RO for service connection for any other claimed disorder and all pending claims of entitlement to an increased evaluation for a service-connected disability have been adjudicated, including those as set forth in the Board's separate decision issued this date, the RO should review all new evidence obtained during additional development of the pending issues, and readjudicate the veteran's claim TDIU, considering the TDIU claim in light of all applicable laws and regulations. Any factual development required for full determination of the TDIU claim should be conducted, including examination if necessary. 2. If any benefit sought on appeal is not granted, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the applicable opportunity to respond thereto. The purpose of this remand is to afford the appellant due process of law. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). S. L. KENNEDY Member, Board of Veterans' Appeals