BVA9501126 DOCKET NO. 93-06 255 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for mediastinal abdominal lipomatosis due to exposure to Agent Orange. 2. Entitlement to service connection for epididymitis. 3. Entitlement to service connection for degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from October 1947 to May 1967. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an October 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida, which denied the veteran's claim for service connection for mediastinal abdominal lipomatosis, epididymitis, and degenerative joint disease of the left knee. REMAND The appellant contends that the RO erred when it denied his claim for service connection for mediastinal abdominal lipomatosis. Specifically, he asserts that this condition was the result of exposure to Agent Orange. He also avers that he should receive VA compensation benefits for his epididymitis. Finally, he asks that the Board reverse the RO's decision which denied service connection for his left knee condition. He maintains that while in service both of his knees underwent tremendous stress after undergoing numerous parachute jumps. Because of these jumps, he states that both knees suffered trauma, and he now requests that he receive compensation benefits for his left knee disability. In January 1994, the Secretary of Veterans Affairs announced through the Federal Register those disabilities which would, and would not, be considered the diseases and disabilities presumably caused by exposure to Agent Orange in Vietnam. As a result of this announcement, in February 1994, the Veterans Benefits Administration published VA Circular 21-94-1, Processing of Claims Based on Exposure to Herbicide Agents, which provides guidance to the regional offices for the processing of those claims related to Agent Orange. A review of the claims folder shows that the veteran's claim for service connection for mediastinal abdominal lipomatosis has not been adjudicated in accordance with these new rules. Therefore, the Board is of the opinion that this issue should be reviewed by the RO prior to the Board issuing a final decision on this matter. It is noted however that this issue may not be well-grounded. From Murphy v. Derwinski, 1 Vet.App. 78 (1990), the Court of Veterans Appeals (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 there is currently a disability which is causally related to the injury, disease, or other incident during service. If these elements are not present, then the RO, and, subsequently, the Board, has a duty to find that the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992). If a claim is found to be not well-grounded, the claim should be dismissed. The veteran is then put on notice that the claim is defective; however, because the claim is dismissed, there is no denial of record to which finality may attach. The veteran then has, in effect, a clean slate upon which to submit additional evidence to show a current disability that is related to service (and exposure to Agent Orange), sufficient to constitute a well- grounded claim that can then be considered on the merits. Finding a claim not well-grounded will prevent the RO from wasting resources in processing implausible claims. See Grivois v. Brown, 6 Vet.App. 136 (1994), and Grottveit v. Brown, 5 Vet.App. 91 (1993). During the remand process, the RO should determine whether the veteran has submitted well-grounded claims to entitlement to service connection for the disabilities at issue, including mediastinal abdominal lipomatosis claimed as secondary to exposure to Agent Orange and epididymitis. With respect to the latter, the Board notes that the report of a VA examination in September 1990 and the veteran, at a personal hearing, indicated that there were no current problems with epididymitis. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should obtain copies of x-ray films of the veteran's left knee prior to his replacement surgery. Upon receipt of these films, the RO should forward the complete claims folder to a radiologist for the purpose of obtaining an opinion concerning the left knee. Specifically, the RO should request that the radiologist express an opinion as to whether there is radiographic evidence showing trauma to the left knee. The radiologist should also be asked to opine whether, if found, such trauma could have been produced by parachute jumping. 2. The RO should, in accordance with VA Circular 21-94-1, Processing of Claims Based on Exposure to Herbicide Agent, readjudicate the appellant's claim relating to his claim that lipomatosis developed due to Agent Orange and the veteran's claim of entitlement to service connection for epididymitis, to include, if appropriate, a consideration of whether the veteran has submitted well-grounded claims. If the decision remains unfavorable, the veteran 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 appellant until he is contacted by the regional office. The purpose of this REMAND is to ensure due process. (CONTINUED ON NEXT PAGE) 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).