BVA9502319 DOCKET NO. 88-44 821 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of exposure to Agent Orange in Vietnam, claimed as malignant melanoma and cataracts. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brynn K. Bloomgren, Associate Counsel INTRODUCTION The appellant had active service from March 1945 to June 1945, August 1947 to August 1949, and from November 1949 to February 1968. This matter previously came before the Board of Veterans' Appeals (hereinafter the Board), which remanded the case to the Regional Office (hereinafter RO) in March 1991 for compliance with the Nehmer decision pertaining to claims based on exposure to Agent Orange. See Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). The issue on appeal originally arose from a May 1988 rating decision of the Muskogee, Oklahoma, RO of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to service connection for malignant melanoma as a result of Agent Orange exposure. The Board denied entitlement to service connection for cataracts in March 1991. However, the Board did not consider the related issue of whether service connection was warranted for cataracts as a result of exposure to Agent Orange. This issue is now ready for review. We note that the veteran is presently service- connected for bilateral pterygium. The issue of entitlement to service connection for a chronic skin disorder, directly, and as a consequence of exposure to Agent Orange, has not been fully developed by the RO. Accordingly, we do not adjudicate this issue, preferring to limit our consideration to those disabilities addressed in the RO's original decision, that is, melanoma and cataracts. Finally, the veteran raised the issue of entitlement to an increased evaluation for bilateral pterygium. This issue is not in appellate status and we refer it back to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for residuals of exposure to Agent Orange, claimed as malignant melanoma and cataracts. He claims that, during his tour of duty in Vietnam, he was assigned to the 101st Airborne, where defoliation was being performed. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim for entitlement to service connection for residuals of exposure to Agent Orange in Vietnam, claimed as malignant melanoma and cataracts, is well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the originating agency. 2. The veteran had active service in Vietnam during the Vietnam era. 3. Malignant melanoma and cataracts are not recognized by the VA as causally related to exposure to herbicide agents used in Vietnam. 4. Chloracne or other acneform disease has not been demonstrated. 5. Melanoma was not manifested until many years after service. 6. A direct causal connection between malignant melanoma and cataracts and exposure to herbicide agents used in Vietnam has not been demonstrated. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim for service connection for residuals of exposure to Agent Orange in Vietnam, claimed as malignant melanoma and cataracts. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). Additionally, where a veteran served continuously for 90 days or more during a period of war, and a malignant tumor became manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). A disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (1994) will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (1994). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) (1994) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1994) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Non-Hodgkin's lymphoma; Porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1994). These diseases shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne, or other acneform disease consistent with chloracne, and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1994). VA has determined that service connection based on exposure to herbicides used in Vietnam may only be presumed for those conditions which it has found a positive association between the condition and such exposure, and, furthermore, that a presumption of service connection was specifically not warranted for certain named conditions, including skin cancer. 59 Fed. Reg. 341 (1994). I. Background Melanoma Service medical records are negative for melanoma. According to the veteran's retirement examination, dated in November 1967, no history or findings of cancer were noted. Physical examination showed that the skin was normal, except for a tattoo on the left arm. Although the veteran has reported that he received treatment for skin problems at the Lemore Naval Hospital in Lemore, California, and Oak Knoll in Oakland, California, shortly after service, the RO was unable to obtain these records directly from the Service Department or from the National Personnel Records Center. During a special Agent Orange examination, dated in October 1986, the veteran said that he did not recall being sprayed directly with herbicide agents, but that he had been in recently sprayed areas, and that he ate food or drink that may have been contaminated. He reported that he had about a dozen scars over his extremities and that these were not in areas which had been exposed to light. Physical examination revealed that the skin appeared to be very dry with many crusty keratoses on the hands, lower lip, ears, and upper face. There were scattered superficial scars and resolving asymptomatic papules, which reportedly began as vesicles, one or two at a time, occurring over one to several weeks for the past sixteen to seventeen years. The diagnosis was dermatitis the past sixteen years, two or three papular lesions, two weeks to a few months to heal with scarring (asymptomatic). Other diagnoses related to the skin were chronic intermittent vesiculopapular skin lesions, vesiculopapular dermatitis, and positive evidence of neoplasia and keratosis. Positive evidence of a relationship between exposure to Agent Orange and melanoma and cataracts was not reported. A VA hospital summary dated in November 1987 shows that the veteran underwent excision of a nodular melanoma on his left upper arm in October 1987, with skin graft. The margins were initially clear, but later there was a depth of 4.3 millimeter by pathology, and the veteran was admitted for further surgery. A repeat pathology was performed without evidence of melanoma or cutaneous spread. A VA follow-up report, dated in November 1987, noted a well-healed excision. The diagnosis was "nodular melanoma unknown Breslow's depth s/p local excision." In February 1988, the diagnosis was history of malignant melanoma. In March 1988, the skin was clear, and later that month, the graft and donor sites were noted to be well-healed. VA treatment reports for skin treatment dated in June and July 1989 reflect that the veteran was seen for a vascular lesion on his right hand, diagnosed as "pyogenic granuloma v. angioma." There was also a widespread eruption seen over the legs and arms in various stages of development, described as weepy, crusty lesions, and hyperpigmented spots. The diagnosis was questionable chronic pityriasis lichenoid chronica. A skin biopsy, dated in July 1989, of the veteran's right hand dorsum, yielded a diagnosis of involuting pyogenic granuloma (hemangioma). VA outpatient treatment reports dated from September 1989 through January 1991 reflect there was no recurrence of skin cancer or nodules. In March 1991, the impression was (1) active keratoses, and (2) probable pityriasis lichenoid. In July 1991, skin survey was negative. There was an old scar from the left arm melanoma removal site. The impression was melanoma status-post excision. In February 1992, physical examination revealed no new skin lesions. The impression was melanoma resected, no apparent recurrence. In June 1993, a physical examination revealed that the skin was clear. A subcutaneous scar was noted above the left elbow. The diagnosis was status post malignant melanoma, left arm 1987. Cataracts Service records are also negative for cataracts, although other eye trouble, bilateral pterygium, was noted. The retirement examination, dated in November 1967, also notes pterygia, not encroaching the cornea. During the Agent Orange examination, performed in October 1986, bilateral aphakia since the age of 38 was noted. VA outpatient reports dated in June 1987 note that the veteran was aphakic with intolerance of contacts, secondary to lifestyle. The veteran desired additional implants. Building up of protein was noted. In October 1987, the veteran was seen for seen for status post vitrectomy, secondary to increased ocular pressure. The veteran was without complaints. The interannular pressure was in good position, having rotated to horizontal. The cornea was clear. The impression was, "doing great." In November 1987, lid tumors on margins were noted to require minor surgery. The veteran was seen for vision trouble in March with cystoid appearance noted. In April 1988, vision returned to normal. In July 1988, there were complaints of redness of the eyes and irritation, secondary to lens implants performed in 1987. July 1989, examination of the eyes was stable. A VA eye examination performed in September 1989 noted that there was no history of ocular melanoma. The diagnoses were bilateral pterygium, suspicious ocular pressure, need to rule out G.L., and pseudo- aphakia, with anterior chamber intraocular lens. In April 1991, the diagnosis was status-post cataract excision with secondary anterior chamber intraocular lens. In April 1992, increased intraocular pressure was noted. In October 1992, the impression was status-post cataract excision, each eye with anterior chamber intraocular lens; history of hypertension, increased ocular pressure stable; and pterygium each eye, mild not seen on visual axis. II. Analysis The preliminary issue before us is whether the veteran has met the initial burden of submitting evidence of a well-grounded claim; that is, one which is plausible, meritorious on its own, or otherwise capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). If a claim is not well- grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). A longitudinal review of the evidence shows an oral history of a skin rash over the extremities and back since shortly after separation, subsequently diagnosed as probable pityriasis lichenoides. This skin condition has not been medically attributed related to melanoma or skin cancer. During the Agent Orange examination in October 1986, neoplasia was noted, but residuals of Agent Orange were not identified. In November 1987, the veteran underwent excision of malignant melanoma, which has not recurred. In 1989, the veteran had an unrelated vascular lesion on the dorsum of his right hand described as a pyogenic granuloma versus angioma. There is also a reported post-service history of cataract excision with anterior chamber interannular lens implants in 1987. The records show that the veteran currently suffers from aphakia, secondary to the lens surgery. Since the veteran has not presented evidence of residuals of Agent Orange or melanoma during service, he has not presented a well-grounded claim for service connection for melanoma on the basis of immediate incurrence. 38 U.S.C.A. §§ 1110, 5107 (1994). Because the veteran had service in Vietnam, exposure to Agent Orange may be presumed. 38 C.F.R. § 3.307(a)(6) (1994). However, there is no evidence of any of the specified diseases entitled to a presumption of service connection as a result of exposure to herbicide agents, such as chloracne, for example. 38 C.F.R. §§ 3.307, 3.309, 5107 (1994). Cataracts are not included in the list of diseases entitled to the presumption of service connection, and skin cancer is specifically excluded. 59 Fed. Reg. 341 (1994). Therefore, a plausible claim for service connection on presumptive basis under the regulations pertaining to exposure to herbicide agents has not been presented. A malignant melanotic tumor was not manifested during the first year after service. Neoplasia was noted in 1986 and treatment for malignant melanoma appears in 1987. Therefore, the initial burden of presenting a plausible claim for service connection for a chronic disease (malignant melanoma) on a presumptive basis has not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Even if plausible claims have not been presented under the statutes providing for manifestations of chronic residuals of Agent Orange in service or within the presumptive period, the veteran is not precluded from presenting a plausible claim for service connection with proof of actual direct causation linking either melanoma or cataracts to such exposure. Combee v. Brown, No. 93-7107 (Fed. Cir. Sept. 1, 1994). Regulations provide that service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d) (1994). Despite the awareness of possible exposure and a special Agent Orange examination, competent medical experts have not related melanoma or cataracts to herbicide exposure. Even though the veteran has, himself, attributed melanoma and cataracts to Agent Orange exposure, this alone cannot constitute a well-grounded claim. Where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) Mere contentions of the appellant without supporting evidence may not suffice. King v. Brown, 5 Vet.App. 19 (1993). The veteran's assertions of medical causation are not probative because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, the veteran has not filed a well-grounded claim for service connection for residuals of Agent Orange, claimed as melanoma and cataracts. In two recent decisions, Grottveit v. Brown, 5 Vet.App. 91 (1993) and Grivois v. Brown, 6 Vet.App. 91 (1994), the United States Court of Veterans Appeals (the Court), has held that claims for service connection denied on the merits by the Board and, preceding the Board's decisions, by the Regional Office, were not well-grounded, and that "the [Board] and the Regional Office erred in not so deciding the claim." Grottveit, 5 Vet.App. at 92. With respect to 38 U.S.C.A. § 5107(a)(West 1991), the Court stated, [t]his statutory prerequisite reflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which--as well-grounded-- required adjudication...Attentiveness to this threshold issue is, by law, not only for the Board but for adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones. Grivois, 6 Vet.App. at 139. The court expressed its concern that a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because new and material evidence would be required, and that "the inertia created by a final denial in the calculus for readjudication is quite something else. We conclude that it is more appropriate to recognize the nullity of the prior decisions and allow the claimant to begin, if he can, on a clean slate." Grottveit, 5 Vet.App. at 93 Grivois, 6 Vet.App. at 140. In both cases, the Court vacated the Board's decision and remanded with instructions to vacate the decision of the RO. Id., Grivois, 6 Vet.App. at 141. In view of the clear indication given by the Court, finality in accordance with 38 C.F.R. § 3.104 (1993) must not attach to the rating decision of May 1988 with respect to the claim of service connection for residuals of exposure to Agent Orange in Vietnam, claimed as malignant melanoma and cataracts. ORDER A well-grounded claim for service connection for residuals of exposure to Agent Orange in Vietnam, claimed as malignant melanoma and cataracts, not having been submitted, the claim is dismissed, and all rating decisions pertinent thereto are vacated. JACK W. BLASINGAME Member, Board of Veterans' Appeals he 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.