Citation Nr: 0000939 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-05 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES Entitlement to service connection for subacute peripheral neuropathy, a nervous disorder, chemical in blood, sleeping seizures, muscle spasms, and orange urine as a result of exposure to herbicides. ATTORNEY FOR THE BOARD K. S. Hughes, Associate Counsel INTRODUCTION The veteran served on active duty from March 1955 to November 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. FINDINGS OF FACT 1. The appellant was not a POW. 2. The appellant did not serve in the Republic of Vietnam. 3. No competent evidence demonstrating that the veteran has subacute peripheral neuropathy, a nervous disorder, chemical in blood, sleeping seizures, muscle spasms, or orange urine as a result of military service, including as a result of exposure to herbicides, has been submitted. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim for service connection for subacute peripheral neuropathy, a nervous disorder, chemical in blood, sleeping seizures, muscle spasms, or orange urine, including as a residual of exposure to Agent Orange. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's service personnel records show that he enlisted with the United States Navy in March 1955 and transferred to the United States Naval Reserve (Inactive) in November 1958. During his period of service, the veteran served aboard the USS Kenneth Whiting and the USS Princeton. The veteran's March 1955 report of Physical Examination for enlistment noted no pertinent abnormalities. Review of the service medical records reveals no findings or complaints indicative of subacute peripheral neuropathy, a nervous disorder, chemical in blood, sleeping seizures, muscle spasms, or orange urine. No relevant findings were reported on the veteran's November 1958 examination for discharge from service. Postservice treatment records consist of a January 1995 report of VA admission for complaints of chest pain. Laboratory studies included a urinalysis which was negative. The remainder of these records are silent with respect to complaints of or treatment for subacute peripheral neuropathy, a nervous disorder, chemical in blood, sleeping seizures, muscle spasms, or orange urine. The veteran's December 1996 VA Form 21-526, Veteran's Application for Compensation or Pension, reflects that the he claimed to have been incarcerated as a prisoner of war (POW) in Korea and the Republic of Vietnam. In an April 1997 statement, the veteran claimed that he served in the Republic of Vietnam during the Vietnam era and his claimed disorders are related to Agent Orange exposure. The veteran's September 1997 notice of disagreement and subsequent communication to the RO reflects his belief that the evidence in his claims file is incomplete and that the evidence to support his claims are available at the Los Angeles, California, RO. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Service incurrence may also be presumed under special laws and regulations pertaining to herbicide exposure in Vietnam. Recent regulations pertaining to Agent Orange exposure, now expanded to include all herbicides used in Vietnam, provide that if a veteran who served on active duty in Vietnam during the Vietnam era develops one of the diseases which is presumed to have resulted from exposure to herbicides, the veteran is presumed to have been exposed to Agent Orange or similar herbicides. McCartt v. West, 12 Vet. App. 164 (1999). These regulations also stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. The specified diseases are 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 sarcoma. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). 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 based upon herbicide exposure with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (1994), cited with approval in McCartt, 12 Vet. App. at 167. The threshold question with regard to the issue of service connection for subacute peripheral neuropathy, a nervous disorder, chemical in blood, sleeping seizures, muscle spasms, and orange urine, including on the basis of exposure to Agent Orange, is whether the veteran has met his burden of submitting evidence of a well-grounded (i.e. plausible) claim. If not, the claim must fail and the VA has no further duty to assist the veteran in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Appeals for Veterans Claims (Court) has held that a veteran must submit evidence, not just allegations, in order for a claim to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). When, as in this case, the issue involves a question of medical diagnosis or causation, medical or otherwise competent evidence is required to make the case well grounded. Grottveit v. Brown, 5 Vet. App. 91 (1993). Lay statements by the veteran, regarding questions of medical diagnosis and causation, are not sufficient to establish a well-grounded claim, as he is not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Court has held that a well-grounded claim requires competent evidence of a current disability (a medical diagnosis); evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and evidence of a nexus between the in-service injury or disease and the current disability (generally medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board finds the veteran has not satisfied the first element of a well-grounded claim for any of his claimed disorders because he has not been diagnosed with subacute peripheral neuropathy, a nervous disorder, chemical in blood, sleeping seizures, muscle spasms, or orange urine. 38 U.S.C.A. §§ 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Caluza v. Brown, 7 Vet. App. at 505; Brammer v. Derwinski, 3 Vet. App. at 225; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The Board notes the veteran's contention that he was a POW and that his claimed disorders are related to exposure to Agent Orange during his service in the Republic of Vietnam. However, his service personnel records clearly show that the veteran's active military service was from March 1955 to November 1958 and he did not service in the Republic of Vietnam or during the Vietnam era. Additionally, there is no evidence to show that he was incarcerated as a POW. Accordingly, even if the evidence showed that the veteran had a current diagnosis of the claimed disorders, the statutory presumptions pertaining to Vietnam service and POW status would not be applicable in this case. 38 U.S.C.A. 1112(b), 1116 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Since the veteran has no current diagnosis of subacute peripheral neuropathy, a nervous disorder, chemical in blood, sleeping seizures, muscle spasms, or orange urine, his claims for service connection for these conditions does not meet the requirements for a well grounded claim under the Courts' holding in Caluza, and must therefore be denied. Because the veteran's claims are not well grounded, VA is under no further duty to assist him in developing facts pertinent to these claims. 38 U.S.C.A. § 5107(a). VA's duty to assist depends upon the particular facts of the case, and the extent to which VA has advised the claimant of the evidence necessary to support a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). The Board finds that the veteran has been provided with adequate notice of the basis for denial of his claims by the RO. The Court has held that the obligation exists only in the limited circumstances where the veteran has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, the veteran claims that the evidence in his claims file is incomplete and that the evidence to support his claims are available at the Los Angeles, California, RO. However, he has not identified the specific supporting evidence to which he refers. Review of the claims file shows that the veteran has relocated on numerous occasions and his claims file has been transferred to the appropriate ROs, including the Los Angeles, California, RO. Inasmuch as the veteran has not identified specific evidence which he claims to be missing and there is no evidence to suggest that the claims file is incomplete, a remand for additional development is not warranted. In this regard the Board notes that he "The VA's . . . . 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). This decision serves to inform the veteran of the kind of evidence which would be necessary to make his claims well grounded. ORDER Service connection for subacute peripheral neuropathy, a nervous disorder, chemical in blood, sleeping seizures, muscle spasms, and orange urine, including as a residual of exposure to Agent Orange, is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals