BVA9503779 DOCKET NO. 89-15 098 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE 1. Entitlement to service connection for a nervous condition secondary to exposure to Agent Orange. 2. Entitlement to service connection for unnamed disabilities secondary to exposure to Agent Orange. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant, Mr. [redacted], and Ms. [redacted] ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from May 1968 to July 1970. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an June 1988 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Des Moines, Iowa, which denied the veteran's claim for service connection for a nervous condition and unnamed other disabilities secondary to exposure to Agent Orange. In April 1990, on the basis of directions given by the United States District Court, in Nehmer v. United States Veterans Administration, 712 F.Supp. 1404 (N.D. Cal., May 2, 1989), the case was remanded to the RO. The RO was instructed to hold the case in abeyance until rules and regulations could be established by the VA governing the adjudication of claims for service connection disability compensation based on exposure to a herbicide containing dioxide. Then in April 1994, the RO, applying the newly established rules and regulations regarding dioxins, denied the veteran's claim, and the claims file was forwarded to the Board for appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that while in Vietnam he was exposed to chemical dioxins such as Agent Orange. He maintains that because of that exposure, he has developed a nervous condition for which he should receive VA compensation benefits. Additionally, he alleges that he suffers from many "disabilities" that affect his daily activities. 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 issue of service connection for a nervous condition secondary to exposure to Agent Orange is not well- grounded. It is also the decision of the Board that, for the issue of service connection for exposure to Agent Orange, the veteran has failed to state a claim upon which relief may be granted, and the claim is denied. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. The veteran claims that while in Vietnam he was exposed to Agent Orange. 3. There is no credible evidence proffered that the veteran's nervous condition was caused by exposure to Agent Orange. 4. Additionally, the veteran has not specified what disability or disabilities, other than a nervous condition, he now suffers due to said exposure. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for service connection for a nervous condition secondary to exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 5107(a), 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.303; 59 Fed. Reg. 5107 (1994) (to be redesignated at 38 C.F.R. §§ 3.307(a), 3.309(e)); (hereinafter cited in this decision as 38 C.F.R. §§ 3.307(a), 3.309(e)). 2. The claim for entitlement to service connection for unspecified disabilities secondary to exposure to Agent Orange is denied for failure to state a claim upon which relief may be granted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994); Sabonis v. Brown, 6 Vet.App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. §§ 1110, 1131 (West 1991), compensation will be provided if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, 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). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, porphyria cutanea tarda, respiratory cancers, and soft-tissue sarcomas. 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 59 Fed.Reg. 341 (1994). I. Nervous Condition Secondary to Exposure to Agent Orange Initially, one who submits a claim for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107 (West 1991). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Veterans Appeals (the Court) has further defined a well-grounded claim as a ". . . plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Considering these criteria, we find that the veteran has not met his statutory burden of submitting evidence of a well-grounded claim for service connection for his claimed psychiatric condition secondary to exposure to Agent Orange. Here, the veteran avers that he suffers from nervous condition secondary to exposure to Agent Orange. However, there is no evidence of record, other than the veteran's allegations, that this nervous disorder was caused by exposure to dioxins. The Secretary has not specifically determined that a presumption of service connection for any type of psychiatric conditions is warranted for Agent Orange exposed veterans, and, thus, such a presumption is not warranted. Therefore, we find that the veteran has failed to meet his initial burden of producing evidence of a well-grounded claim. Moreover, the only support for the veteran's claim that his psychiatric condition resulted from Agent Orange exposure is his own statement to that effect. The Court has said that claimants unversed in medicine are not competent to make medical determinations. In other words, since the veteran has had no medical training, his statement that Agent Orange caused his disability carries no weight. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). See also Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990) (Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required.). In two recent decisions, Grottveit v. Brown, 5 Vet.App. 92 (1993), and Grivois v. Brown, 6 Vet.App. 136 (1994), 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, at 92. The governing law, 38 U.S.C.A. § 5107(a) (West 1991), [R]eflects 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 - require adjudication. . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial 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 to reopen. The Court deemed it appropriate, where the Board denied on the merits a claim that was not well-grounded, to "recognize the nullity of the prior decisions and allow appellant to begin, if he can, on a clean slate." Grottveit, 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 direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994), not attach to the rating decisions of June 27, 1988, and March 22, 1994, along with the Hearing Officer's Decision of March 8, 1989, as regards this claim. II. Unnamed Disabilities Secondary to Exposure to Agent Orange In addition to the above claim, the veteran has also requested service connection for exposure to chemical dioxins, i.e., Agent Orange. That is, besides his claim that he suffers from a nervous condition secondary to Agent Orange exposure, he also maintains that he suffers from other "disabilities" due to said exposure. The RO has denied his claim noting that he has not specifically indicated from what disabilities, if any, he now suffers that were caused by exposure to Agent Orange. VA Form 21-6796, Rating Decision, June 27, 1988. The veteran has appealed that decision claiming that he currently suffers from various conditions and that he should be service-connected for his exposure to Agent Orange. In Sabonis v. Brown, 6 Vet.App. 426 (1994), the Court of Veterans Appeals (the Court) reiterated its position previously reported in King v. Brown, 5 Vet.App. 19, 21 (1993) and Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). That is, per 38 U.S.C.A. § 5107(a) (West 1991), the appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The Sabonis decision went further and distinguished a not well grounded claim from those without legal merit and from those lacking entitlement under the law, stating that the two last named should be denied, or the appeal to the BVA terminated. The veteran's claim for service connection for unspecified disabilities resulting from exposure to Agent Orange fits in that category. "Service connected means, with respect to disability...that such disability...was incurred or aggravated...in line of duty in the active military, naval, or air service. 38 C.F.R. § 3.1(k). (Emphasis provided.) It is thus clear that unless there is a disability, there is nothing to service connect. Since the veteran has failed to identify any additional disabilities, other than a psychiatric condition, that he currently suffers from due to Agent Orange exposure, he has failed to state a claim for which relief may be granted. In other words, since he is not claiming a particular disability or disease, besides a psychiatric condition, as being caused by chemical dioxin exposure, there is no possible legal entitlement, thus the claim must be denied. ORDER 1. A well-grounded claim for service connection for a nervous condition secondary to exposure to Agent Orange, not having been submitted, the claim is dismissed, and the rating decisions of June 27, 1988, and March 22, 1994, along with the Hearing Officer's Decision of March 8, 1989, insofar as the claim for entitlement to service connection for a nervous condition secondary to exposure to Agent Orange is concerned, are vacated. 2. Entitlement to service connection for unnamed disabilities secondary to exposure to Agent Orange is denied. JACK W. BLASINGAME 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. (CONTINUED ON NEXT PAGE) 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.