BVA9507629 DOCKET NO. 89-13 563 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for thyroid cancer, claimed as secondary to exposure to Agent Orange or other herbicide agents used in Vietnam. 2. Entitlement to service connection for a liver disorder, claimed as secondary to exposure to Agent Orange or other herbicide agents used in Vietnam. 3. Entitlement to service connection for a lipoma of the left upper back, claimed as secondary to exposure to Agent Orange or other herbicide agents used in Vietnam. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Associate Counsel INTRODUCTION The veteran had active service from October 1966 to November 1969. This appeal ensues from a regional office (RO) rating decision of May 1987, which denied entitlement to service connection for thyroid cancer, as the result of exposure to Agent Orange. While the case was in appellate status, however, all benefit denials pursuant to the Agent Orange regulation then in effect, 38 C.F.R. § 3.311a, were voided by Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). This decision required the Department of Veterans Affairs (VA) to revise its Agent Orange regulations in accordance with the ruling of the Court. In July 1990, the issue was remanded by the Board of Veterans' Appeals (Board) for consideration following the promulgation of the new regulations. In May 1994, the veteran's claim for service connection for thyroid cancer and a liver disorder was denied under the revised regulations. The case was referred to the Board, and remanded to the RO for additional development in August 1994. Service connection for a lipoma of the left upper back was denied by rating action in January 1995, and following the issuance of a supplemental statement of the case and the veteran's substantive appeal, the case was returned to the Board for appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he developed thyroid cancer, a liver disorder and a "tumor" (diagnosed as a lipoma) of the shoulder as a result of exposure to Agent Orange while he was in Vietnam. He believes that the cancer, which he states was of a "mixed" type, is characteristic of Agent Orange exposure. He points out that he has no family history of liver or thyroid problems. The veteran believes that tissue slides of the thyroid and the liver should be independently examined to determine whether Agent Orange is causally related to the development of the disorders. 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 submitted evidence of a well- grounded claim for service connection for thyroid cancer, a liver disorder or a lipoma of the left upper back due to exposure to herbicide agents in Vietnam. FINDINGS OF FACT 1. All available 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. Thyroid cancer, a liver disorder and a lipoma of the left upper back were first demonstrated years after service and are not related to any events therein,. 4. Thyroid cancer, a liver disorder and a lipoma of the left upper back are not recognized by the VA as causally related to exposure to herbicide agents used in Vietnam. 5. A direct causal connection between thyroid cancer, a liver disorder and a lipoma of the left upper back 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 thyroid cancer, a liver disorder or a lipoma of the left upper back due to herbicide agents used in Vietnam. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's examination for entrance onto active duty conducted in June 1966 did not reveal any pertinent abnormalities, although the veteran reported that one of his grandparents had had cancer. Service medical records show the veteran was seen with a rash of the groin, diagnosed as tinea cruris, in August 1967. In October 1967, an exostosis of the left humerus was excised. In June 1968, a rash of the groin and midsection, diagnosed as tinea corporis/cruris was noted. A papula-vesicular erythematous eruption on the left shoulder and in the mid-line of the upper back, of one week's duration, was noted in July 1968. The back was pruritic when wet, although the shoulder eruptions did not itch. The impression was contact dermatitis versus miliaria rubia. The separation examination of October 1969 noted the skin to be clear, and no pertinent complaints were reported. In May 1970, a VA examination was conducted. No enlarged organs were palpable, and the thyroid gland was grossly normal to palpation. Dermatology examination revealed tinea cruris, involutionary phase. In a request for an extension of delimiting date for receipt of educational benefits received in December 1980, the veteran reported a history of episodic heavy drinking from his discharge until the birth of his daughter in 1979. Private outpatient treatment records dated from 1978 to 1987 do not reveal any pertinent complaints or abnormalities until 1983, when a thyroid mass was discovered. In April 1983, the veteran was hospitalized in St. Francis Regional Medical Center, with a history of a mass in the left neck noticed three weeks prior to admission. A scan revealed a cold nodule. He was hospitalized, and a complete blood count on admission was normal. After a biopsy revealed malignancy, the veteran underwent a total thyroidectomy and excision of chain of lymph nodes along the left side of the thyroid. The pathological diagnosis was mixed papillary and follicular carcinoma of the left lobe of the thyroid; Hashimoto's thyroiditis and follicular carcinoma of the right lobe of the thyroid; sinus histiocytosis of the lymph node of the left thyroid fossa; and metastatic follicular carcinoma of the thyroid of one of three lymph nodes. Medical records compiled in connection with the veteran's National Guard service, dated from 1978 to 1988, do not reveal any abnormalities other than the status post thyroidectomy noted above. According to private medical follow-up studies in October 1993, blood chemistries revealed an elevated lactate dehydrogenase, as well as elevated ferritin. Iron binding capacity was below normal limits. In November 1993, bone marrow biopsy and aspiration were performed to evaluate high serum ferritin of two months' duration, and disclosed increased iron stores, although they were normally deposited in the stromal cells. There was no evidence of abnormal deposition within the erythrocyte series. Hematology in December 1993 continued to show increased ferritin, although hemoglobin was normal. A total body scan in December 1983 did not reveal any metastases of carcinoma. A needle biopsy of the liver in January 1994 revealed increased iron stores. There also appeared to be a mild degree of cellular regenerative change in focal twin cell plating, which was entirely non-specific. The pathologist noted that it was his understanding that the veteran was interested in an investigation for fluorocarbons with reference to possible Agent Orange toxicity. Laboratories which conducted such testing were listed, and it was also noted that in addition to the expense of the test, a positive test would not be diagnostic for Agent Orange toxicity. On a VA examination in September 1994, the veteran reported that he had been exposed to Agent Orange during 18 months of shore duty in Vietnam. He stated that he had never worked with or around any other chemicals. He stated he had used very little alcohol in his lifetime. He stated he began to have gastrointestinal symptoms about five years earlier. He was receiving phlebotomies for polycythemia. The veteran did not know of any diagnosis for his liver abnormalities. Examination revealed epigastric tenderness, but the liver was not palpated. The diagnosis was undiagnosed liver disease, possibly hemochromatosis. Another VA examination was conducted in October 1994. At this time, the veteran reported having been in Vietnam for 2 years and 7 months, during which time he was exposed to Agent Orange. He felt Agent Orange had induced his current complaints, including upper abdominal pain, a thick-feeling tongue and dry mouth. He felt somewhat anorexic and had generalized malaise. He weighed 220 pounds, down from 232. He stated he had been given the diagnosis of hemochromatosis based on blood chemistries showing polycythemia and elevated ferritin. The liver biopsy was reviewed by a VA pathologist, and was found to reveal iron deposition in the hepatocytes, but no deposition in the biliary canaliculi, and was felt to represent hemosiderosis. The veteran had been phlebotomized three times. He did not describe any other symptoms of his liver disease. He also had hypothyroidism secondary to thyroidectomy due to thyroid cancer. The veteran's skin was normal on examination, except for a few spiders on the chest. He was tender to deep palpation in the right upper quadrant, and the liver was palpable with a smooth edge. Serum iron was noted to be normal, although ferritin was elevated. The impression was hemosiderosis with incomplete evidence for hemochromatosis. There was mildly elevated amino transaminases, of uncertain etiology, possibly secondary to moderate alcohol use. There was no evidence of hemochromatosis or porphyria cutanea tarda on laboratory or liver biopsy. In addition, there was hypothyroidism on thyroid replacement and cholelithiasis. In December 1994, a VA skin examination was performed, which revealed the veteran complained of a mass of the medial aspect of the left scapula which he had first noticed about 20 years earlier. It had gradually increased in size since that time. It had never been diagnosis. Examination disclosed a non-tender, non-inflamed mass of the mid aspect of the medial edge of the left scapula, firm and movable. The lesion was red, raised, firm and non-tender. The diagnosis was lipoma of the left upper back. Analysis The threshold question to be answered in this case is whether the veteran has met his initial obligation with the submission of evidence of a well-grounded claim; that is, one which is plausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). 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 (West 1991); 38 C.F.R. § 3.303 (1994). If the disability is a malignant tumor, service connection may be established if the disability was manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). In this case, it is not contended or otherwise demonstrated that the disabilities at issue were present in service. Rather, he contends that he developed thyroid cancer, a liver disorder, and a skin tumor of the upper back as a consequence of exposure to Agent Orange while he served in Vietnam during the Vietnam era. The new regulations pertaining to Agent Orange exposure, expanded to include all herbicides used in Vietnam, stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 38 C.F.R. § 3.309(e) (1994). The specified diseases are chloracne or other acneform disease consistent with chloracne, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, soft-tissue sarcoma, multiple myeloma, and respiratory cancers. Id. Regarding porphyria cutanea tarda, regulations only provide a presumption of service connection if the disease is manifested within a year of exposure. 38 C.F.R. § 3.307(a)(6) (1994). If a veteran served in Vietnam during the Vietnam era, exposure to Agent Orange will be presumed; if the veteran later develops a disease listed as associated with Agent Orange exposure, service ncurrence may be presumed. 38 C.F.R. § 3.307(6)(iii) (1994). In addition, the Secretary of Veterans Affairs formally announced in the Federal Register, on January 4, 1994, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for certain conditions, to specifically include skin cancer, or for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 59 Fed. Reg. 341 (1994). Thus, since there is no presumption of a connection between herbicide exposure and subsequently developing thyroid cancer, liver disease or lipoma, service connection cannot be allowed on a presumptive basis. 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, 3 F.3d 1039 (Fed. Cir. 1994). However, the United States Court of Veterans Appeals (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) In this case, there is no competent medical evidence suggesting a connection between the veteran's claimed herbicide exposure while in Vietnam and subsequently developing thyroid cancer, liver disorder or lipoma. 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). The VA examiner in October 1994 specifically found that there was no evidence of porphyria cutanea tarda, the only disease involving the liver for which there is a presumed association with herbicide exposure. Moreover, the presumption only applies where the disease is manifested within a year of the last exposure. 38 C.F.R. § 3.307(a)(6) (1994). Consequently, in the absence of competent evidence of medical causation, the claim is not well-grounded, and must be dismissed. The veteran has contended that additional testing should be conducted to determine the effects of Agent Orange exposure. However, the liver biopsy report dated in January 1994 noted that such testing regarding the liver, even if positive, would not be diagnostic for Agent Orange exposure. He has submitted no medical evidence in support of his assertion that because his thyroid cancer was "mixed" in type, it was causally related to herbicide exposure. Similarly, no competent evidence connecting the lipoma to herbicide exposure has been submitted. Moreover, since the veteran has not submitted evidence of a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), there is no duty to assist the veteran in any further development of his claim. Rabideau v. Derwinski, 2 Vet.App. 141 (1992), Murphy v. Derwinski, 1 Vet.App. 78 (1990). The United States Court of Veterans Appeals (the Court), in Grottveit v. Brown, 5 Vet.App. 92 (1993), and Grivois v. Brown, 6 Vet.App. 136 (1994), addressed the threshold requirement set forth in 38 U.S.C.A. § 5107(a) that the veteran must submit a well-grounded claim. In these cases, the Court held that issues developed on the merits were, in fact, not well-grounded, and that "the [Board] and the Regional Office erred in not so deciding the claim." Grottveit, at 92. The Court said, in reference to 38 U.S.C.A. § 5107(a), that the initial adjudicators, as well as the Board, have a duty to "avoid adjudicating implausible claims at the expense of delaying well- grounded ones." Grivois, at 139. The Court further 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 "it is more appropriate to recognize the nullity of the prior decisions and allow appellant to begin, if he can, on a clean slate." Grottveit, at 93. In both cases, the Court vacated the Board's decision and remanded with instructions to vacate the decision of the RO. Id.; Grivois, at 140. 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 claim for service connection for residuals of herbicide exposure, specifically, thyroid cancer and liver disease, denied by rating action of May 1994, and lipoma of the left upper back, denied by rating action of January 1995, which were herein determined to be not well-grounded. ORDER A well-grounded claim for service connection for thyroid cancer, a liver disorder, and a lipoma of the left upper back due to herbicide exposure not having been submitted, the claims are dismissed, and the rating decisions of May 2, 1994, and January 6, 1995 are vacated. BETTINA S. CALLAWAY 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. 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.