Citation Nr: 0002336 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 95- 37 207A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a skin disability on a direct basis or as a residual of exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's wife ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from September 1951 to June 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In January 1998, the Board issued decisions on several issues on appeal in this claim, and remanded the issues of entitlement to service connection for a skin disability to include on an Agent Orange basis and entitlement to service connection for bilateral hearing loss to the RO for additional development. While the case was in remand status, the RO granted service connection for bilateral hearing loss. The case has been returned to the Board for further appellate review. FINDINGS OF FACT The claim of entitlement to service connection for a skin disability on a direct basis or as a residual of exposure to Agent Orange is not plausible. CONCLUSION OF LAW The claim of entitlement to service connection for a skin disability on a direct basis or as a residual of exposure to Agent Orange is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran is seeking service connection for a skin to include as due to Agent Orange exposure. The legal question to be answered initially is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail with respect to this claim and there is no duty to assist him further in the development of this claim. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. The veteran's service medical records are unavailable. The record shows that the veteran was examined by VA in April 1993, and xerosis, seborrheic keratosis, actinic keratosis, multiple lentigines, and papillomas on the eyelids were diagnosed. In January 1995, he and his wife testified at the RO concerning his disability. It was stated that the veteran was in Vietnam and some spraying material got on his left leg of is flight suit. He stated thereafter he had itching. He stated that he was treated for the itching and irritation. He stated that he had blisters and redness on his leg also. A complete transcript is of record. The veteran was examined by Mark D. Heibel, M. D. in February 1999. Ovoid scaly plaques and patches were noted on the palms distal fingers, lower legs and feet. Also noted were onychodystrophy and subungual debris of several toenails. The examiner diagnosed that the eruption of the hands and lower legs most likely represented psoriasis and also diagnosed probable onychomycosis of the toenails. The examiner noted that for proper evaluation, the veteran would need a biopsy of the plaques of psoriasis to determine that it was psoriasis and not another form of chronic dermatitis. It was stated that it was not the examiner's opinion that the lesions present were in anyway associated with the use of Agent Orange exposure. It was noted that the eruption most likely represented psoriasis. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, (West 1991); 38 C.F.R. § 3.303 (1999). The regulations pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, now provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam War. 38 C.F.R. § 3.307(a)(6). With respect to any claim of entitlement to service connection based on a theory that the disorder is related to exposure to Agent Orange the Board observes that a statutory presumption pertains to only certain diseases. Service connection may be presumed for a number of diseases arising in veterans who have been determined to have been exposed to Agent Orange. A list of diseases is contained at 38 U.S.C.A. § 1116 (West 1991), and 38 C.F.R. § 3.309(e) (1999). The list includes chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; Non- Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda, prostate cancer; respiratory cancers (cancers of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The presumption for service connection applies for claimants exposed to an herbicidal agent as defined in 38 C.F.R. § 3.307(a)(6)(i) (1999). Moreover, the diseases listed shall have become manifest to a degree of 10 percent or more at any time after service, except chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy which must become manifest to a degree of 10 percent or more within a year after service. Respiratory cancers shall become manifest to a degree of 10 percent or more within 30 years after the last date on which the veteran was exposed to an herbicide agent. 38 C.F.R. §38 U.S.C.A. § 1116 (West 1991); 38 C.F.R. §§ 3.307, 3.309(e) (1999). The inclusion of certain diseases, as opposed to others, within this list reflects a determination by the Secretary of Veterans Affairs (Secretary), based on sound medical and scientific evidence, that there exists a positive association between (A) the occurrence of those diseases in humans and (B) the exposure of humans to an herbicide agent. 38 U.S.C.A. § 1116(b)(1); 61 Fed. Reg. 41368-41371 (1996). The veteran has not been diagnosed with any of the listed skin disorders which are noted in 38 C.F.R. 3.309. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In the present case, while post-service medical records reveal that the veteran currently has a skin disorder variously diagnosed as psoriasis, onychomycosis of the toenails, dermatophyte of the hands and feet, xerosis, seborrheic keratosis, actinic keratosis, multiple lentigines and papillomas on the eyelids, none of the diseases for which the statutory presumption attaches have been diagnosed and no examiner has linked any skin disorder with the appellant's active duty service, including the claimed exposure to Agent Orange. Further, the appellant has not submitted any competent evidence otherwise suggesting such a nexus. Rather, the only evidence presented by the veteran that tends to show a connection between a skin disorder and service is his own statements. These statements are not, however, competent evidence relating a present condition to the appellant's military service. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Ultimately, this claim is not well-grounded because the veteran has not satisfied element three of a well-grounded claim: the nexus between the in-service injury or disease and the current disability. The veteran's statements that his current disorder is linked to his active service or to Agent Orange exposure is not supported by competent in-service or post-service medical evidence. See Grottveit v. Brown, at p. 93. The post-service medical evidence of record, in particular, does not demonstrate a chronic disability that was manifest to a compensable degree within a reasonable time after service. For instance, the first medical indication in the record of a skin disability occurs in 1993, many years after service discharge, and was not accompanied by any medical opinion that links this diagnosis, or subsequent diagnoses related to skin problems, to service. Moreover, the veteran's own opinion can not establish a causal nexus. Lay persons are not competent to render such an opinion. See Zang v. Brown, 8 Vet. App. 246 (1995); See also Godfrey v. Brown, 7 Vet. App. 398 (1995). In summary, no competent evidence had been presented to provide a nexus between any inservice occurrence and symptomatology or diagnoses related to rhinitis first clinically identified many years after service. Where, as in the veteran's case, a veteran has not met the burden of presenting a well-grounded claim, the VA has no further duty to assist him in developing facts pertinent to his claim. Although the VA does not have a statutory duty to assist a claimant in developing facts pertinent to a claim that is not well-grounded, the 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. See Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the veteran's service medical records (SMR) are unavailable through no fault of his own, thus there is a heightened obligation for the VA to assist the claimant in the development of his case and to provide reasons or bases as to the rationale for any adverse decision rendered without SMR. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the appellant in developing facts pertaining to his claim under the provisions of 38 U.S.C.A. § 5107(a) in a case where service medical records are presumed destroyed includes the obligation to search for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991). Where the claimant's service medical records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261 (1992). The Board notes that efforts have been made to locate the veteran's service medical records and the veteran has been contacted regarding submitting evidence to supplement his claim. Unfortunately, these actions did not produce any records. Thus, in this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under section 5103(a) to assist claimant in filing his claim pertains to relevant evidence that may exist or could be obtained). See also Epps v. Brown, 9 Vet. App. 341 (1996) (Section 5103(a) duty attaches only where there is an incomplete application that references other known and existing evidence). The veteran is free at any time in the future to submit evidence in support of his claim. Medical records of complaints and treatment of a skin disability in service or shortly thereafter would be helpful in establishing a well- grounded claim, as well as medical opinion linking any current findings with the veteran's military service. Robinette v. Brown, 8 Vet. App. 69 (1995). Although the Board considered and denied this claim on a ground different from that of the RO, the appellant has not been prejudiced by such. This is because in assuming that the claim was well grounded, the RO accorded the claimant greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER Service connection for a skin disorder on a direct basis, or as a residual of exposure to Agent Orange is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals