Citation Nr: 0002134 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 97-16 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for peripheral neuropathy and multiple myeloma, claimed as the result of exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty in the United States Army from April 2, 1968, to April 30, 1968. This appeal arises from a February 1997 rating decision of the Department of Veterans Affairs (VA), Montgomery, Alabama, regional office (RO). In June 1999, the case was remanded in order to schedule the veteran for a requested hearing before the Board of Veterans' Appeals (Board). In October 1999, a hearing was held in Montgomery, Alabama, before the Board member rendering this decision, who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1999). FINDINGS OF FACT 1. There is no objective evidence that the veteran currently has peripheral neuropathy or multiple myelomas. 2. The claims of service connection for peripheral neuropathy and multiple myelomas, claimed as the result of exposure to Agent Orange, are not plausible. 3. VA has no statutory duty to assist a veteran in the development of facts pertinent to claims which are shown to be not well grounded. CONCLUSION OF LAW The veteran has not submitted evidence of well grounded claims for service connection for peripheral neuropathy and multiple myelomas, claimed as the result of exposure to Agent Orange. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered at the outset is whether the veteran's claims are well grounded; that is, whether they are plausible, meritorious on their own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). With respect to Agent Orange, the Board notes that a veteran who, during active service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e) (1999), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. Diseases or disorders which have been positively associated with Agent Orange exposure are chloracne or other acneform diseases consistent with chloracne, porphyria cutanea tarda, Hodgkin's disease, non- Hodgkin's lymphoma, respiratory cancers, prostate cancer, multiple myeloma, soft-tissue sarcomas, and acute and subacute peripheral neuropathy. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1999). At the outset, the Board notes that the veteran has reported that he was employed in Vietnam from 1966 to 1968 as a Merchant Marine affiliated with the United States Coast Guard. The Coast Guard concluded in 1985 that the veteran was a merchant seaman and was not a member of the Coast Guard. The RO has been unable to confirm whether the veteran had any period of service which would qualify him for the presumption of exposure to a herbicide agent during service. However, given the basis of the Board's decision in this case, the issue of the nature of the veteran's service is not relevant and will not be further addressed in this decision. An appellant has, by statute, the duty to submit evidence that a claim is well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the appellant is not met. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19 (1993). In this case, the appellant's evidentiary assertions as to the relationship between his current claimed disorders and his period of service or exposure to Agent Orange are inherently incredible when viewed in the context of the total record. The Board has reviewed the record following the guidelines for a well-grounded claim as set forth in Caluza v. Brown, 7 Vet. App. 498 (1995), specifically, that there must be: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. Alternatively, the third Caluza element can be satisfied under 38 CFR 3.303(b) (1999) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). See also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1995); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). The service medical records pertaining to the veteran's brief period of active duty during 1968 show no treatment or complaints related to the claimed disorders. The veteran was treated for malignant melanoma on his left arm in 1980. In February 1983, he reported bilateral arm paresthesia. Nerve conduction studies found no evidence of peripheral neuropathy in bilateral upper extremities. Review of the entire medical record reveals no diagnoses of peripheral neuropathy or multiple myeloma at any time. The objective medical evidence simply does not demonstrate that the veteran has, or ever had, either of the claimed disorders. In the absence of a current disability, his claims for service connection are not well-grounded. See Caluza, supra. The Board has carefully considered the veteran's statements with respect to his claims; however, through his statements alone, he cannot meet the burden imposed by section 5107(a) merely by presenting his lay statements as to the existence of disability and a relationship between that disability and his service because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical etiology or diagnosis cannot constitute evidence to render a claim well grounded under section 5107(a); if no cognizable evidence is submitted to support the claim, the claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, at 611 (1992). Where a claim is not well-grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). While the RO's denial was based on its determination that the veteran did not have service which would qualify him for the presumption of exposure to a herbicide agent, implicit in its determination was that there was no objective evidence showing that he has the claimed disorders. Unlike the situation in Robinette, the veteran has not put VA on notice of any specific piece of evidence that, if submitted, could make his claim well-grounded. See Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). The Board has noted the accredited representative's argument that certain provisions of M21-1 are the equivalent of VA regulations and are applicable to the duty to assist when a claim is not well grounded. However, the Board notes that a recent decision of the United States Court of Appeals for Veterans Affairs (Court) determined that the cited provisions were not substantive but merely interpretive rules. Moreover, VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet. App 477 (1999), req. or en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App July 28, 1999) (per curiam). ORDER The appeal is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals