Citation Nr: 0000525 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 97-32 233A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for epididymitis claimed as prostate cancer, including as a result of exposure to herbicides. 2. Entitlement to service connection for acute and subacute peripheral neuropathy, including as a result of exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard A. Cohn, Assistant Counsel INTRODUCTION The veteran served on active duty from December 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in New York, New York (RO) which denied service connection for epididymitis claimed as prostate cancer and for acute and subacute peripheral neuropathy, both including as a result of exposure to herbicides. FINDINGS OF FACT 1. There is no competent medical evidence that the veteran currently has epididymitis or prostate cancer. 2. There is no competent medical evidence that the veteran currently has acute or subacute peripheral neuropathy. CONCLUSION OF LAW The claims of entitlement to service connection for epididymitis, prostate cancer and acute and subacute peripheral neuropathy are not well grounded. 38 U.S.C.A. §5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is entitled to service connection for epididymitis claimed as prostate cancer and for acute and subacute peripheral neuropathy. The veteran further avers that he developed these disorders as a result of his exposure to herbicides during his period of active duty in Vietnam. A veteran is entitled to service connection for a disability resulting from disease or injury incurred in or aggravated in line of duty while in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). The threshold question for the Board, however, is whether the veteran presents a well-grounded claim for service connection. A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive, it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to his claim and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). To establish that a claim for service connection is well grounded, the appellant must demonstrate the existence of a current disability, the incurrence or aggravation of a disease or injury in service, and a nexus between the current disability and the in-service injury. Id. at 1467-1468. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to prove service incurrence. Id. at 1468. Alternatively, a veteran may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that that same condition currently exists. This evidence must be medical unless the condition at issue is of a type for which case law considers lay observation sufficient. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same provision if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In addition to the foregoing, service connection may be granted for a disease diagnosed after service discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of a current disability and a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). In regard to the veteran's claim concerning Agent Orange exposure, a specifically listed chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents (listed disease) is considered incurred in service under specified circumstances notwithstanding a lack of evidence of such disease during service. 38 C.F.R. § 3.309 (1999). A veteran who served in active duty in the Republic of Vietnam during the Vietnam era and who has a listed disease is presumed to have in-service exposure to an herbicide agent absent evidence to the contrary. 38 C.F.R. § 3.309(e). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (1999). The listed diseases subject to these provisions are as follows: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). A listed disease 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, porphyria cutanea tarda, and acute and subacute peripheral neuropathy 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 service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and a disorder other than one for which the Secretary has specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586- 57589 (1996). Therefore, no disorder other than a listed disease is considered chronic for purposes of these provisions. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991); 38 C.F.R. § 3.307(a). However, the Veteran's Dioxin and Radiation Exposure Compensation Standards 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, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The veteran's service personnel records disclose that during his period of active duty he served a year long tour of duty in Vietnam. There are no service medical records associated with the claims file showing that the veteran sought or received treatment for or was diagnosed with epididymitis, prostate cancer or acute and subacute peripheral neuropathy. The claims file is replete with a very large body of medical documentation including private and VA reports of examinations, treatment and evaluations from the time of his separation from service to May 1997. However, all of these records pertain to disorders other than those at issue here and none includes evidence of a diagnosis for epididymitis, prostate cancer or acute and subacute peripheral neuropathy or to another listed disease. A February 1990 Social Security Administration (SSA) Disability Determination and Transmittal record documents the SSA's determination that the veteran was disabled primarily due to chronic hidradenitis and secondarily due to multi-substance abuse. Neither of these disorders is a listed disease. The claims file does include some documentation pertaining to the veteran's possible exposure to the herbicide Agent Orange. Several medical records, including VA treatment records from August and October 1989 and a November 1989 report of a private examination, cite a history of possible Agent Orange exposure. The source of the history is not clear from these records. However, these records do not link possible Agent Orange exposure to epididymitis, prostate cancer or acute and subacute peripheral neuropathy, or to another listed disease. In addition, an April 1990 letter from an organization identified as the Agent Orange Administration informed the veteran of his eligibility for an Agent Orange Veteran Payment Program. But there is no evidence of the criteria used to determine this status and no mention of epididymitis, prostate cancer or acute and subacute peripheral neuropathy or of another listed disease. The veteran underwent VA examinations in May 1997, the reports of which clearly state that his prostate was normal, that there was no evidence of peripheral neuropathy, and that there were no current symptoms of what might have been an episode of purulent epididymitis. Beyond the veteran's own statements, there is no competent medical evidence that the veteran currently has epididymitis, prostate cancer or acute and subacute peripheral neuropathy. However, the veteran is a lay person with no medical training or expertise so his statements alone cannot constitute competent evidence of the claimed disorders. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that lay persons are not competent to offer medical opinions). Inasmuch as the record is devoid of competent medical evidence establishing that the veteran currently has epididymitis, prostate cancer or acute and subacute peripheral neuropathy, the veteran's claim for service connection for those disorders is implausible and must be denied as not well grounded under a direct, presumptive and any other analysis. Because the veteran has failed to meet his initial burden of submitting evidence of well-grounded claims for service connection, the VA is under no duty to assist him in developing the facts pertinent to his claims. See Epps, 126 F.3d at 1468. The Board is unaware of the existence of additional evidence that might well ground the veteran's claims and trigger a duty to notify pursuant to 38 U.S.C.A. § 5103(a). See McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1997). ORDER The veteran's appeal is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals