BVA9505020 DOCKET NO. 88-49 282 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a skin disorder as secondary to Agent Orange exposure, for the purpose of medical care only. ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had honorable active service from July 14, 1967, to March 13, 1968, and had other than honorable active service from March 14, 1968, to June 22, 1971. A September 1971 administrative decision by the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO), determined that the appellant's discharge issued in June 1971 was dishonorable. Although the United States Department of the Army upgraded the nature of his June 1971 service discharge to "Under Honorable Conditions (General)," the nature of his service discharge has been determined to be a bar to entitlement to VA compensation benefits. 38 C.F.R. § 3.12(c) (1994). This claim, therefore, is for benefits under the provisions of 38 C.F.R. § 3.360 (1994) and 38 U.S.C.A. Chapter 17 (West 1991), for medical care only. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1988 rating decision by the RO, which denied a claim of entitlement to service connection for a skin disorder as secondary to Agent Orange exposure. 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 VA for revision of the regulation in accordance with the ruling of the Court. An August 1989 Board decision remanded the issue of entitlement to service connection for a skin disorder as secondary to Agent Orange exposure 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 August 1994 rating decision, has again denied the appellant's claim after considering the new regulations. Although the Board notes that an April 1980 rating decision, which became final in May 1981, denied a claim of entitlement to service connection for a skin disorder, claimed as "blisters on genitals" (diagnosed as herpes and condyloma), the Board finds that the present issue of entitlement to service connection for a skin disorder as secondary to Agent Orange exposure is separate and distinct from the claim of entitlement to service connection for a skin disorder, claimed as "blisters on genitals," and that the current claim is not an attempt to reopen the claim of entitlement to service connection for a skin disorder, claimed as "blisters on genitals." CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he was exposed to Agent Orange while he was in Vietnam. He believes that Agent Orange exposure was responsible for the development of "blisters" that affect his legs, back, neck, face, arms, and shoulders. 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 secondary to Agent Orange exposure. 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 healed dermatosis of the appellant's thigh region in 1988, is not recognized by the VA as etiologically related to exposure to herbicide agents used in Vietnam. 4. Although the appellant claims that he has "blisters" that affect his legs, back, neck, face, arms, and shoulders, 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 secondary to Agent Orange exposure. 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 "blisters" that affect the appellant's legs, back, neck, face, arms, and shoulders, as secondary to Agent Orange exposure, as incurred in or aggravated by military service, are inherently incredible when viewed in the context of the total record. Review of the appellant's service medical records reveals that he received treatment for furuncles (boils) during March and April 1969. The furuncles affected his buttocks, left knee and right thigh, and he was treated with tetracycline. An April 1970 service medical examination indicated normal clinical evaluation of the appellant's skin and lymphatics, with no abnormality or defect listed. A subsequent June 1971 service separation medical examination revealed normal clinical evaluation of the appellant's skin and lymphatics, with no abnormality or defect listed, and it was noted that the appellant had "good health." In a March 1980 private medical statement, from R. P. Poetz, M.D., the physician stated that, in March 1980, he had treated the appellant for herpes and condyloma. In a private medical statement, received in January 1985, from B. Goldstein, M.D., the physician reported that he had treated the appellant six times, from 1971 to 1974, for either tonsillitis or upper respiratory infections. There was no treatment for a skin disorder listed. A February 1988 VA medical examination disclosed no abnormal finding pertaining to the appellant's skin. However, a physician listed, as a diagnosis, that the appellant had a healed dermatosis of his thigh region. In a September 1988 statement, the appellant alleged that he had "blisters" that were affecting his legs, back, neck, face, arms, and shoulders. He also stated that he had received medical treatment from Dr. Poetz and Dr. Goldstein, for the period from 1971 to 1980, Dr. Elder, in November 1984, and the Washington University Clinics, in July 1987, for his claimed skin disorder. The Board notes that the aforementioned private medical statements from Dr. Poetz and Dr. Goldstein do not list medical treatment for "blisters" affecting the appellant's legs, back, neck, face, arms, and shoulders. Review of the claims file reveals that, although the RO requested medical records and statements from Dr. Elder and the Washington University Clinics in February 1988, those medical providers have not responded to the RO's request. 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 "blisters" affecting his legs, back, neck, face, arms, and shoulders. Although he believes that a skin disorder 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). Although the appellant argues that his exposure to Agent Orange while in Vietnam, which is presumed for a veteran who served in the Republic of Vietnam during the Vietnam era and who has a disease listed at 38 C.F.R. § 3.309(e) (1994) (38 C.F.R. § 3.307(a)(6)(iii) (1994)), resulted in the development of a skin disorder, claimed as "blisters" affecting his legs, back, neck, face, arms, and shoulders, and diagnosed as healed dermatosis of his thigh region in 1988, more than 17 years after his separation from service, that disorder is not recognized as one of the diseases attributable to Agent Orange exposure. Consequently, in the absence of competent evidence of medical causation between Agent Orange exposure and the appellant's alleged skin disorder, the claim is not well-grounded, and must be dismissed. 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 May 1988 and August 1994 with respect to the issue of entitlement to service connection for a skin disorder as secondary to Agent Orange exposure. 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 May 1988 and August 1994 are vacated insofar as they deny service connection for a skin disorder as secondary to Agent Orange exposure. 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 so assigned. (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 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.