BVA9504504 DOCKET NO. 89-09 730 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a skin disorder as a residual of exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1988 rating decision of the Department of Veterans Affairs (VA) Philadelphia, Pennsylvania, Regional Office (RO), which denied a claim of entitlement to service connection for a skin disorder as a residual of exposure to Agent Orange. However, in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989), a United States District Court voided all benefit denials under 38 C.F.R. § 3.311a, the "dioxin" (Agent Orange) regulation, which was promulgated under the "Dioxin and Radiation Exposure Compensation Standards Act," 38 U.S.C.A. § 1154(a) (West 1991), and remanded the case to the Department of Veterans Affairs for revision of the regulation in accordance with the ruling of the Court. A November 1989 Board decision remanded the issue of entitlement to service connection for a skin disorder as a residual of exposure to Agent Orange to the RO to be held in abeyance pending the promulgation of regulations pertaining to Agent Orange exposure, as required by Nehmer. Final regulations were promulgated by VA in February 1994, and the RO, in an April 1994 rating decision, has again denied the appellant's claim after considering the new regulations. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he was exposed to Agent Orange while he performed the duties of an infantryman with the 196th Infantry Brigade in Vietnam. He believes that Agent Orange exposure caused him to develop a skin rash that first appeared on his right elbow in 1981 and subsequently developed on his left elbow, both knees, and fingers. 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 appellant'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 appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for a skin disorder as a residual of exposure to Agent Orange. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant had active service in Vietnam during the Vietnam era. 3. A skin disorder, diagnosed as psoriasis in 1987, is not recognized by the VA as etiologically related to exposure to herbicide agents used in Vietnam. 4. Although there is medical evidence of record indicating the initial manifestations of a skin disorder, claimed as a rash affecting the appellant's elbows, knees, and fingers, more than 11 years after the appellant's separation from service, no evidence other than the appellant's allegations has been submitted indicating that this disorder is related to service, or is due to any in-service occurrence or event, including Agent Orange exposure. CONCLUSION OF LAW The appellant has not submitted evidence of a well-grounded claim for entitlement to service connection for a skin disorder as a residual of exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5107(a) (West 1991); 38 C.F.R. §§ 3.307(a), 3.309(e) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered at the outset of the analysis of any issue is whether the appellant's claim is well- grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The United States Court of Veterans Appeals (Court) has said that the statutory "duty to assist" under 38 U.S.C.A. § 5107(a) (West 1991) does not arise until there is a well-grounded claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). A veteran 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 veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the veteran 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). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). A chronic, tropical, or prisoner-of-war related disease, or 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 this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 38 C.F.R. § 3.309(a) (1994) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991); 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)(iii) (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). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit recently 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 with proof of actual direct causation. Combee v. Brown, No. 93-7107 (Fed. Cir. Sept. 1, 1994). However, the Court has held that 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) The diseases listed at 38 C.F.R. § 3.309(e) (1994) 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). In this case, the evidentiary assertions as to the claim of service connection for a skin disorder, claimed as a rash affecting the appellant's elbows, knees, and fingers, as a residual of exposure to Agent Orange, as incurred in or aggravated by military service, are inherently incredible when viewed in the context of the total record. A February 1969 service medical record revealed that the appellant had what appeared to be a lesion (illegible record) on his left pretibial area that was due to a fall that had occurred three weeks prior to that examination. A January 1970 service separation medical examination demonstrated normal clinical evaluation of the appellant's skin and lymphatics, with no skin disorder listed as a defect. Although the appellant listed a rash as one of his complaints in a January 1981 report of medical examination, VA Form (VAF) 21-2545, a medical examination showed no diagnosis pertaining to a skin disorder. A September 1981 VA medical examination indicated no abnormality of the skin, to include appendages, and no skin rash was noted. A copy of a September 1987 private medical statement from the appellant's chiropractor, David C. Blessing, stated that the appellant had a skin rash on his elbows, knees, and fingers. At an October 1987 VA medical examination, a physician reported that the appellant had noted a 3 to 5 year history of a rash that had involved his elbows and hands. The physician noted that the appellant had silver plaques on both elbows, and a diagnosis of psoriasis was listed. At his December 1988 personal hearing, the appellant testified that he had been told that his skin disorder was psoriasis. He reported that he had had the skin disorder for the previous 7 years and that it had affected his fingers, palms, elbows, and knees. In this case, there is no competent medical evidence suggesting a connection between the appellant's presumed herbicide exposure while in Vietnam and the subsequent development of a skin disorder, claimed as a rash affecting the appellant's elbows, knees, and fingers, more than 11 years after his separation from service. Although he believes that his rash was caused by exposure to Agent Orange, his assertions of medical causation alone are not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Where the service medical records do not show the claimed disability during service and where there is no medical evidence to link a current disability with events in service or with a service-connected disability, or where the disorders are not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). The Court has expressed its concern that, in a situation in which the claim is not well-grounded, a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because such reopening would require the submission of new and material evidence. The Court has deemed it appropriate, where a decision was made on the merits with respect to a claim that was not well-grounded, to recognize the nullity of the prior decision and allow the appellant to begin, if he can, on a clean slate. Grottveit v. Brown, 5 Vet.App. at 93 (1993). 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 in June 1988 and April 1994 with respect to the issue of entitlement to service connection for a skin disorder as a residual of exposure to Agent Orange. ORDER A well-grounded claim for service connection for a skin disorder due to herbicide exposure not having been submitted, the claim is dismissed, and the rating decisions in June 1988 and April 1994 are vacated insofar as they deny service connection for a skin disorder as a residual of exposure to Agent Orange. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.