Citation Nr: 0000907 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 96-47 283 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been submitted since the Board of Veterans' Appeals decision in November 1983 to reopen the claim of service connection for defective hearing as directly due to service. 2. Whether new and material evidence has been submitted since the Board of Veterans' Appeals decision in January 1976 to reopen the claim of secondary service connection for defective hearing. 3. Whether new and material evidence has been submitted since the Board of Veterans' Appeal decision in January 1976 to reopen the claim of service connection for a low back disorder. 4. Whether new and material evidence has been submitted since the Board of Veterans' Appeal decision in January 1976 to reopen the claim of service connection for a disability manifested by a loss of balance. 5. Entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease (COPD); an eye disorder claimed as corneal opacities, and skin cancer due to exposure to mustard gas. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from April 1942 to October 1945. In January 1976, the Board of Veterans' Appeals (Board) denied service connection for bilateral defective hearing and a disability manifested by a loss of balance, on a direct and secondary basis, and for a back disorder on a direct basis. The veteran and his representative were furnished a copy of this decision. By rating action in June 1982, the RO, in part, denied the veteran's request to reopen the claim of service connection for defective hearing. A letter from the veteran in July 1982 was accepted, in part, as a notice of disagreement with the June 1982 rating action which denied the veteran's request to reopen the claim of service connection for defective hearing. A Statement of the Case was issued in July 1982, and the veteran perfected an appeal with respect to his defective hearing. In November 1983, the Board, in part, found that new and material evidence had not been submitted to reopen the claim of service connection for defective hearing on a direct basis. This matter comes before the Board on appeal from rating decisions in February and September 1996. In February 1996, the RO found the claims of service connection for chronic obstructive pulmonary disease (COPD), corneal opacities, and skin cancer due to exposure to mustard gas were not well grounded. The September 1996 rating decision found that new and material evidence had not been submitted to reopen the claims of service connection for defective hearing, a back disorder, or a disability manifested by a loss of balance. A personal hearing at the RO was held in June 1997. In a statement of record authored by the Appellate Litigation Staff, dated March 29, 1996, it was indicated that the veteran's representative, in a telephone conversation earlier that day, had raised the issue of service connection for a back disorder secondary to a service-connected right knee disability. This issue also has not been developed for appellate review and is not inextricably intertwined with the claim to reopen service connection for a back disorder on a direct basis. Accordingly, this matter is referred to the RO for appropriate action. Additionally, in a statement received in April 1998, the veteran appears to have raised an additional issue of service connection for "postpolio syndrome" based on aggravation of a preexisting disability during service. The veteran also appears to have raised the issue of service connection for tinnitus. It is pointed out that service connection for tinnitus was denied previously by the RO in April 1983, and was not appealed. These issues have not been developed for appellate review and are not inextricably intertwined with the issues on appeal. Accordingly, these matters are referred to the RO for appropriate action. FINDINGS OF FACT 1. Service connection for defective hearing on a direct basis was last denied by the Board in November 1983. 2. The additional evidence received in connection with the veteran's request to reopen the claim of service connection for defective hearing on a direct basis is new and material, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran's claim of entitlement to service connection for defective hearing on a direct basis is plausible. 4. Service connection for defective hearing on a secondary basis was last finally denied by the Board in January 1976. 5. The additional evidence received in connection with the veteran's request to reopen the claim of secondary service connection for defective hearing is either cumulative of evidence already of record or is not so significant that it must be considered to fairly decide the merits of the claim. 6. Service connection for a back disorder and a disability manifested by a loss of balance was last finally denied by the Board in January 1976. 7. The additional evidence received in connection with the veteran's request to reopen the claim of service connection for a back disorder is either cumulative of evidence already of record or is not so significant that it must be considered to fairly decide the merits of the claim. 8. The additional evidence received since the January 1976 Board decision does not establish a relationship between any current disability manifested by a loss of balance and military service. 9. The record does not contain competent evidence that the veteran experienced full-body exposure to nitrogen or sulfur mustard gas or Lewisite during service. 10. No competent evidence has been submitted to establish that the veteran has a respiratory disorder or an eye disorder for purposes of providing presumptive service connection, or which is due to disease or injury in service. 11. The veteran's squamous cell carcinoma of the left cheek is not due to disease or injury in service, and is not shown by any competent clinical evidence to be related to any incident, injury, or disease during service, including exposure to mustard gas CONCLUSIONS OF LAW 1. The November 1983 Board decision which denied the veteran's request to reopen the claim of service connection for defective hearing is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1999). 2. New and material evidence has been submitted to reopen the claim of service connection for defective hearing on a direct basis. 38 U.S.C.A. § 5108 (West 1991); C.F.R. §§ 3.156(a), 20.1105 (1999). 3. The January 1976 Board decision which denied service connection for defective hearing on a secondary basis is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1999). 4. New and material evidence has not been submitted to reopen the claim of service connection for defective hearing on a secondary basis. 38 U.S.C.A. § 5108 (West 1991); C.F.R. §§ 3.156(a), 20.1105 (1999). 5. The claim of entitlement to service connection for defective hearing on a direct basis is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 6. The January 1976 Board decision which denied service connection for a back disorder is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1999). 7. New and material evidence has not been submitted to reopen the claim of service connection for a back disorder. 38 U.S.C.A. § 5108 (West 1991); C.F.R. § 3.156(a) (1999); 38 C.F.R. §§ 3.156(a), 20.1105 (1999). 8. The January 1976 Board decision which denied service connection for a disability manifested by a loss of balance is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1999). 9. Material evidence has not been submitted to reopen the claim of service connection for a disability manifested by a loss of balance. 38 U.S.C.A. § 5108 (West 1991); C.F.R. §§ 3.156(a), 20.1105 (1999). 10. The veteran has not submitted a well-grounded claim of service connection for a respiratory disorder, claimed as COPD, or for an eye disorder, claimed as corneal opacities on a direct or any applicable presumptive basis. 38 U.S.C.A. § 5107 (West 1991). 11. The veteran's squamous cell carcinoma of the skin was not incurred in or aggravated by active service, nor may its incurrence in service on the basis of mustard gas exposure be presumed. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303(d), 3.316 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The evidence of record at the time of the Board decision in January 1976, included the veteran's service medical records, numerous VA and private medical records from 1971 to 1975, a transcript of the veteran's testimony at a personal hearing at the RO in April 1974, and two reports of VA examinations conducted in March 1973 and January 1975. The service medical records, including the veteran's separation examination in October 1945, was negative for any complaints, abnormalities or diagnoses referable to any hearing impairment, back disorder, or any problems with loss of balance. The examination report showed tropical fungus in his left ear, and a hearing acuity of 15/15, bilaterally. There was no indication in the available service medical records that the veteran participated in any kind of chemical testing. The veteran made no mention of any hearing impairment, back disorder, or problems with a loss of balance on his original application for VA benefits received in November 1945. By rating action in April 1946, service connection was established for otitis externa of the left ear and residuals of an injury to the right knee, each rated noncompensable, effective from October 29, 1945. VA progress notes in 1971 and 1972 show that the veteran was seen on several occasions for cerumen in his ears. The records show that the veteran's ears were irrigated on each occasion. A progress note in May 1971, indicated that the veteran was treated with Penicillin for an ear infection. The veteran indicated that he could hear better after taking the Penicillin. A March 1973 VA examination report showed a history of earaches on a daily basis, and complaints of back problems. There was no mention of any hearing difficulty, back problems, or loss of balance. The diagnosis was otitis externa. In a letter dated and received in December 1973, the veteran reported that he started wearing hearing aides in June 1973. The veteran reported a loss of equilibrium when his ears were infected, and he described an injury to his back in service when he fell while working on a gun emplacement. At a personal hearing at the RO in April 1974, the veteran testified about the various problems he had with his ears, including multiple infections and loss of balance. Letters from three private physician's dated in May 1974, indicated that the veteran was treated for back problems beginning in 1964. The letters indicated that the veteran was first seen for low back stiffness with pain radiating into his left leg in March 1964. The initial diagnosis was acute lumbosacral strain. A second diagnosis in May 1964 was low back strain with sciatic neuritis. The reports indicated that the veteran had worn a back brace since 1964. By rating action in June 1974, service connection was denied for defective hearing, a back disorder, and a disability manifested by a loss of balance. VA medical records from 1972 to 1974 show treatment for various problems, including back and ear problems. The diagnoses included lumbar strain with sciatic neuritis. When examined by VA in January 1975, the veteran reported trouble with his back since an injury in service when he fell off a ramp while wheelbarrowing cement. The veteran reported difficulty walking or standing for prolonged periods, and that he had lost time at work because of his back problems. The diagnoses included localized degenerative changes from L3-5 with narrowing of the lumbosacral joints, and considerable bone reaction especially at the level of the articular surface of S1. In January 1976, the Board denied service connection for bilateral defective hearing and a disability manifested by a loss of balance on a direct and secondary basis, and a back disorder on a direct basis. The evidence of record at the time of the Board decision in November 1983 included the evidence reported above; a transcript of the veteran's testimony at a personal hearing at the RO in January 1983, and a statement written by the veteran and purportedly signed by a private physician. The veteran's testimony concerning his hearing problems at a personal hearing at the RO in January 1983 was essentially the same as that which he provided in April 1974. The veteran reported that he was treated by several private physicians after service, but that the physicians were now deceased. The veteran's representative testified that the veteran had no new evidence to submit on behalf of his claim. The evidence added to the record since the November 1983 Board decision that denied service connection for defective hearing includes VA examinations conducted in June 1992, and June and July 1996; VA progress notes for the period 1991- 1992; a February 1993 private pathology report from Rhode Island Hospital; a health screening report from The Miriam Hospital dated in November 1993; a transcript of a personal hearing held at the RO in June 1997, and a written opinion by [redacted]. VA progress notes show treatment for various complaints, including hearing problems from June 1991 to February 1992. The VA examinations in June 1992, and June and July 1996, show that the veteran underwent examinations for his back, right knee, ears, and hearing acuity. The diagnoses on the June 1992 orthopedic report included chronic back strain secondary to severe spondylosis with spur formation and bridging osteophytes. The June 1992 audiological report included the diagnosis of deafness. A similar diagnosis was made on a VA audiological examination in June 1996. The orthopedic examination in June 1996 noted the veteran's self-described back injury in service. However, the examiner concluded that the injury did not appear to be serious, as the veteran reported that he was treated at a battalion aid station and returned to duty. The examiner opined that the veteran's current back problems were due to degenerative arthritis due to advancing age. A July 1996 VA examination for ear disease also offered a diagnosis of deafness. At that time, the examiner opined that it was possible that the veteran's hearing loss could have been caused by noise trauma in service. The examiner also opined that the veteran's imbalance was not related to his ear pathology. Copies of a surgical pathology report from Rhode Island Hospital received in September 1993 indicated that a lesion was removed from the veteran's left cheek in February 1993. Microscopic analysis showed the specimen to be a squamous cell carcinoma, keratinizing, well-differentiated, keratoacanthomatous type. Copies of a lung health screening at The Miriam Hospital in November 1993 and received by the VA in August 1995 indicated that the veteran had moderate restrictive lung disease. A copy of a VA eye prescription form associated with the claims folder in November 1995 indicated that the veteran required corrective eyeglasses in October 1989. The veteran's testimony at the personal hearing in June 1997 was essentially the same as provided at the hearing in January 1983. The veteran identified three private physicians that had treated him between 1957 and 1967, and indicated that they had all told him his balance problems were caused by his otitis externa. The written opinion from Mr. [redacted] addressed the subject of potential diseases related to exposure to mustard gas during service. Mr. [redacted] noted that chronic ear infections could lead to deafness or hearing loss, and to loss of balance. He also indicated that exposure to mustard gas could cause a loss of hearing due to upper respiratory problems. Mr. Faber opined that is was more likely than not that many, if not all of the veteran's health problems could have been caused by his military service. In General: Claims to reopen As noted above, service connection for defective hearing and a disability manifested by a loss of balance on a direct and secondary basis, and a back disorder on a direct basis, was denied by the Board in January 1976. A later decision by the Board in November 1983, found that new and material evidence had not been submitted to reopen the claim of service connection for defective hearing on a direct basis. Because the present appeal with regard to these issues does not arise from an original claim, but rather from an attempt to reopen claims which were denied previously, the Board must bear in mind the important distinctions between those two types of claims. In order to reopen a claim which has been previously finally denied, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). Section 5108 of title 38 of the United States Code provides that, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." The regulations provide that new and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). Current caselaw provides for a three-step approach in determining whether new and material evidence has been presented to reopen a claim. First, it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, it must be determined immediately upon reopening whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(A); and third, if the claim is well grounded, the merits of the claim must be evaluated after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) and Winters v. West, 12 Vet. App. 203 (1999) (en banc). The Board notes that, until recently, caselaw of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") mandated that an additional question had to be addressed; that is, whether in light of all the evidence of record, there was a "reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" in the prior determination. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). This additional test was overruled in the Hodge case cited above. Although the RO in this case cited the overruled portion of the Colvin test in the November 1996 Statement of the Case (SOC), it did not rely on this test in determining that new and material evidence had not been submitted to reopen the veteran's claims. Accordingly, the Board finds that the citing of this test is harmless error and, therefore, there is no need to remand the issues for consideration of the holding in Hodge. Defective Hearing Regarding the claim of service connection for defective hearing on a direct basis, the Board notes that a July 1996 VA audiological examiner opined, in essence, that it was possible that noise trauma in service could have contributed to the veteran's present hearing loss. This evidence is new as it was not previously considered by the RO, and offers a basis for relating the veteran's hearing loss to service. The records are also material in that they are so significant that they must be considered in order to decide fairly the merits of the claim. 38 C.F.R. § 3.156. Having decided that the July 1996 VA audiological report is new and material, there is no need to discuss whether the other evidence is likewise new and material as the claim will be reopened solely on the basis of this evidence. As the first step in the three-step analysis has been met, it must next be determined whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). To sustain a well-grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of either medical causation or diagnosis, medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Alternatively, the third Caluza element can be satisfied under 38 C.F.R. 3.303(b) (1999) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997)." In this case, the recent statement by the VA audiologist constitutes plausible competent medical evidence to support the veteran's claim that his hearing loss was incurred in service. Accordingly, the Board finds that the veteran's claim is well grounded. In addressing the final step of the analysis, the Board must consider any due process issues as addressed by the Court in Bernard v. Brown, 4 Vet. App. 384 (1993). Pursuant to Bernard, the Board must consider whether addressing the claim on a de novo basis would cause prejudice to the veteran. In this regard, the Board finds that the case must be remanded to the RO to fulfill the duty to assist under 38 U.S.C.A. § 5107(b), and to afford the veteran an opportunity to present evidence and argument in support of his claim. The additional medical evidence added to the record since the January 1976 Board decision that denied secondary service connection for defective hearing is not new or material, but merely cumulative of evidence already of record. The additional records merely show continued treatment for hearing problems. While a diagnosis of deafness was noted on VA examinations in 1992 and 1996, none of the additional medical records provided an etiological relationship between any current hearing loss and the veteran's service-connected otitis externa. Thus, the additional medical evidence is not material. The veteran's testimony is basically cumulative in nature and repetitive of facts previously considered. While the veteran may believe that his hearing loss is related to his service- connected otitis externa, his lay assertions of medical causation are not "evidence" for the purpose of reopening the claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). Similarly, with regard to the statement by Mr. [redacted], the Board points out that Dr. [redacted] opined as follows: Occasionally otitis externa can lead to pus buildup in the ear which can result in deafness or hearing loss." Mr. [redacted] listed his credentials as a Masters Degree in Public Health. He is not licensed or formally trained to offer a medical diagnosis or a medical etiology of a condition. In this regard, his degree connotes only a general knowledge of the field of Public Health as opposed to training in evaluating and diagnosing individual patients and the etiology of their individual diseases. He is not qualified to determine if there was any "pus buildup" in the veteran's ear. Thus, his opinion, in the context of this case, becomes no more than those of ordinary laymen. In summary, as a lay person, Mr. [redacted]'s assertions regarding questions of medical diagnosis or etiology cannot constitute "evidence" for purposes of reopening the claim, as he is not competent to provide such evidence. Id. Back Disability The evidence added to the record since the January 1976 Board decision that denied service connection for a back disorder includes VA examinations conducted in March 1983, June 1992, and June 1996; VA progress notes for treatment from 1981 to 1982, and from 1991 to 1992; a transcript of a personal hearing held at the RO in June 1997, and a written opinion by Mr. [redacted]. The additional medical records are not "new" but cumulative, in that they merely show continued treatment. Furthermore, the additional medical evidence does not offer any probative information or medically link the veteran's current back problems to service. In fact, a VA physician in June 1996 opined that the veteran's current back problems were due to degenerative arthritis from advancing age. The veteran's testimony is basically cumulative in nature and repetitive of facts previously considered, and his lay assertions of medical causation is not "evidence" for the purpose of reopening the claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). The evidence of record at the time of the last Board decision included the veteran's separation examination in 1945 which showed no back abnormalities. The first objective evidence of any back problem was in 1964, some 19 years after service separation. The written opinion from Mr. [redacted] does not address the veteran's back disorder, and is not probative of the issue at hand. Accordingly, the Board finds that a basis to reopen the claim of service connection for a back disorder has not been presented. Loss of Balance The evidence added to the record since the January 1976 Board decision that denied service connection for a disability manifested by a loss of balance includes VA examinations conducted in March 1983, June 1992, and June 1996; VA progress notes for treatment from 1981 to 1982, and from 1991 to 1992; a transcript of a personal hearing at the RO in June 1997, and a written opinion by Mr. [redacted]. The additional medical records, while showing complaints of occasional loss of balance, do not medically link the veteran's current symptoms to service. Thus, the additional medical records are not material. Moreover, a VA audiological examiner in July 1996 opined that the veteran's imbalance was not related to any ear pathology. The veteran's testimony is also not material as the veteran, as a layperson, is not competent to offer testimony as to the etiology of his loss of balance. The veteran's testimony concerning the etiology of his hearing loss, vis-a-vi, due to his chronic otitis externa, is the same argument he offered at a personal hearing in April 1974. In a statement received in April 1998, the veteran offered another theory for his loss of balance, that it was due to taking anti-malarial medications, including large doses of quinine. However, the veteran has not provided any competent medical evidence to support his assertions. While the veteran may believe that his current medical problem is related to service or to a service-connected disability, his lay assertions of medical causation are not "evidence" for the purpose of reopening the claim. Moray v. Brown, 5 Vet. App. 211, 214 (1993). Likewise, Mr. [redacted] is not licensed or formally trained to offer a medical diagnosis. Thus, his opinion regarding questions of medical diagnosis or etiology cannot constitute "evidence" for purposes of reopening the claim, as he is not competent to provide such evidence. Id. In summary, the Board finds that the additional evidence is not material, since it does not include competent medical findings linking any current disability manifested by loss of balance to military service or to a service-connected disability. Absent the submission of material evidence, it is unnecessary to determine whether any evidence is new. Accordingly, a basis to reopen the claims of service connection for a back disorder or a disability manifested by a loss of balance has not been presented. The undersigned notes that at his hearing in June 1997, the veteran identified three private physicians who had treated him from around 1957 to 1967, and had reportedly told him that his balance problems were related to his chronic ear infections. This evidence is not contained in the claims folder. However, the Board notes that the veteran had testified previously in January 1983 that the three physicians were deceased, and that their records were not available. When a veteran has made an application to reopen a claim and the Secretary is on notice of evidence which may prove to be new and material but has not been submitted with the application, the Secretary has a duty under section 5103 to inform a claimant of the evidence that is "necessary to complete the application." 38 U.S.C.A. § 5103(a) (West 1991). Graves v. Brown, 8 Vet. App. 522 (1996). However, as the veteran had reported previously that the three physicians were deceased and their records are unavailable, the Board finds that a remand to request the veteran to obtain these records would not serve any useful purpose and would be a futile act. Lastly, in response to the veteran's assertions that not all of his service medical records are in the claims file, the Board points out that the veteran's service medical records were associated with the claims file in April 1946, nearly three decades before the fire. The claims folder includes originals and some photocopies of what appears to be all of the veteran's service medical records, including his entrance and separation examinations. Furthermore, the Board notes that there is a treatment record dated in June 1944 showing the veteran was seen for impacted cerumen and returned to duty. This record is significant in that the date of treatment was during the time period that the veteran was apparently stationed in Panama. Several attempts were made to obtain any additional service medical records, including an attempt in January 1946, for treatment at a dispensary in Panama. However, no additional records were located. While the National Personal Records Center (NPRC) suggested in February 1974 that the veteran's service medical records may have been destroyed by the fire in 1973, it would appear that the NPRC conclusion was probably based on the dates of service for the records that were lost in the fire, which would have included the veteran's records if they were at that facility at the time of the fire, and the absence of any records at that facility. Obviously, as the veteran's service medical records had been associated with the claims file many years earlier, they could not have been destroyed in the fire. Given that the veteran's service medical records are in the claims file, the Board finds that there is no heightened duty to assist. Mustard Gas Exposure The veteran asserts that he was an instructor at Fort Ord, California in 1945, and was routinely exposed to mustard gas training exercises. The veteran stated that as part of basic training of new recruits, he was required to participate in mustard gas exercises which were carried out in a gas chamber. The veteran estimated that he was exposed to mustard gas about 25 to 50 times. The veteran claims that he now suffers from COPD, corneal opacities and skin cancer due to exposure to mustard gas. As discussed in detail above, under 38 U.S.C.A. § 5107(a), a VA claimant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a claim of entitlement to service connection is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 73 (1995). Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). In addition, service connection for certain "chronic diseases" may be granted on a presumptive basis. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). As applied to the facts in this case, such diseases include malignant tumors if shown to be compensably disabling within one year after service. 38 C.F.R. § 3.307(a)(3). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). With respect to the presumptive diseases, the Board notes that a claimant is not precluded from establishing service connection for diseases subject to presumptive service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The holding in Combee is applicable to the facts in this case. Claims based upon chronic residual effects of exposure to mustard gas and Lewisite are governed by 38 C.F.R. § 3.316 (1999), which provides as follows: (a) Except as provided in paragraph (b) of this section, exposure to the specified vesicant agents during active military service under the circumstances described below together with the subsequent development of any of the indicated conditions is sufficient to establish service connection for that condition: (1) Full-body exposure to nitrogen or sulfur mustard during active military service together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: Nasopharyngeal; laryngeal; lung (except mesothelioma); or squamous cell carcinoma of the skin. (2) Full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma or chronic obstructive pulmonary disease. (3) Full-body exposure to nitrogen mustard during ctive military service together with the subsequent development of acute nonlymphocytic leukemia. (b) Service connection will not be established under this section if the claimed condition is due to the veteran's own willful misconduct or there is affirmative evidence that establishes a non-service-related supervening condition or event as the cause of the claimed condition. In the case of Pearlman v. West, 11 Vet. App. 443 (1998), the Court addressed the application of 38 C.F.R. § 3.316 in determining the well groundedness of claims. The Court indicated that under 38 C.F.R. § 3.316, the initial burden for a well-grounded claim was relaxed for veterans who subsequently developed conditions specified by the regulation, to the extent that the regulation did not require evidence of a medical nexus for those conditions, but rather a nexus was presumed if the other conditions required by the regulation were met. Pearlman, at 446. The Court specified that "the veteran is relieved of his burden of providing medical evidence of a nexus between the current disability and the in-service exposure. Rather, service connection is granted if the appellant has experienced: (1) full body exposure, (2) to the specified vesicant agent, (3) during active military service, and (4) has subsequently developed the specified conditions;" subject to the regulatory exceptions in paragraph (b). Id. The Board notes that in the Pearlman case, the veteran had stated he had participated in gas chamber testing involving mustard gas exposure, and that he had subsequently developed disabilities which were among the conditions specified within 38 C.F.R. § 3.316. Although all efforts by VA to substantiate his claimed exposure had been unsuccessful, the Court held "that for the purpose of submitting a well- grounded claim relating to exposure to toxic gases under this regulation, the Board must assume that the lay testimony of exposure is true. However, the Court further noted that "whether or not the veteran meets the requirements of this regulation, including whether or not the veteran was actually exposed to the specified vesicant agents, is a question of fact for the Board to determine after full development of the facts." Pearlman, at 447. Applying the Court's holding in Pearlman to the case at hand, the Board notes that the veteran has submitted competent clinical evidence that shows a confirmed diagnosis of squamous cell carcinoma of the skin located on the left cheek which was surgically removed in February 1993. However, the veteran has not provide any medical evidence of a clear diagnosis of any of the listed eye or respiratory disorders found at 38 C.F.R. § 3.316(a)(1). Squamous cell carcinoma of the skin is a disease for which presumptive service connection may be allowed in accordance with 38 U.S.C.A. § 3.316(a)(1) and (2). The veteran also asserts that he was exposed to mustard gas during service. Accordingly, the Board finds that the veteran's claim with regard to squamous cell carcinoma of the skin is well grounded. (The issues of claimed COPD and corneal opacities will be discussed separately hereinbelow.) Regarding the veteran's squamous cell carcinoma of the skin, the Board finds that service connection is not warranted on a presumptive basis in accordance with 38 U.S.C.A. § 3.316 because the evidence is not at least in equipoise that the veteran had "full-body exposure" to nitrogen or sulfur mustard or Lewisite at any time during active service. The service medical records do not reflect any such exposure, nor was the RO able to verify the veteran's exposure by contacting the VA Central Office (VACO). The VACO reported in June 1995 that the veteran's name did not appear on any lists of veterans who had participated in mustard gas experiments. (See Report of Contact dated in June 1995). Additionally, the RO submitted to National Personal Records Center (NPRC) in June 1995, a request for additional service medical records, identifying the veteran's case as involving averred exposure to mustard gas. The NPRC responded in December 1995 that it had no further records concerning the veteran, and that his file may have been destroyed in the 1973 fire. (It is noted that the veteran's service medical records had been obtained by the VA prior to the fire.) In June 1995, the RO submitted a request to the Commander, U.S. Army Chemical and Biological Defense Agency (Agency), that it search for evidence showing that the veteran had been exposed to mustard gas. In July 1995, the Agency responded that it did not maintain personnel or medical records of former military personnel or unit training records for units other than Chemical Warfare Service units. The agency requested additional information in order to research the veteran's claim further. The veteran provided additional information with the necessary detail in August 1995, which was then forwarded to the Agency for additional development. In October 1995, the Agency responded that it could not confirm the veteran's alleged exposure to mustard gas. Furthermore, the Agency reported that there was no information relating to the use of mustard agent in the gas chamber for basic training. The Agency indicated that their records show that tear gas and/or chlorine were the only chemical agents used to fit trainees/recruits with gas masks and to teach them how to use them. In another letter received in October 1995, the Agency indicated that it had no information related to the veteran by name. The Agency stated that the veteran appeared to relate, in his description of events, the standard gas chamber training that all soldiers received prior to leaving the U.S. for overseas combat duty. The Agency noted that during these common training exercises, the prescribed chemical agent was chlorine or tear gas. As the evidence of record does not establish that the veteran was exposed to any of the vesicant agents listed under 38 C.F.R. § 3.316, including mustard gas, during his period of active service, the Board is unable to extend the presumption of service connection for the veteran's squamous cell carcinoma of the skin, as secondary to exposure to mustard gas. While the veteran claims to have COPD and corneal opacities which are due to exposure to mustard gas in service, he has not presented any competent medical evidence to support his assertions. The medical evidence of record shows his respiratory disorder is due to restrictive airway disease, and that he was given a prescription for corrective glasses in October 1989. Restrictive airway disease and refractive error are not disabilities for which presumptive service connection is warranted under 38 C.F.R. § 3.316. The veteran, as a lay person, is not competent to offer a medical opinion as to the etiology of his respiratory disorder or eye disorder. Grottveit. Consequently, any presumptions pertaining to mustard gas exposure for his respiratory disorder and eye disorder are not applicable. Notwithstanding the foregoing, the veteran is not precluded from establishing service connection on direct-incurrence for any disability due to exposure to noxious gases, such as mustard gas, with proof of actual causation. See Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994). However, where the issue involves medical causation, "competent medical evidence" which shows that the claim is plausible or possible is required to set forth a well- grounded claim. Grottveit. Thus, service connection may still be established for the veteran's respiratory disease, eye disorder, and squamous cell carcinoma of the skin, by showing actual causation, where all the evidence establishes that the veteran's disabilities were incurred in service. 38 C.F.R. § 3.303(d) (1999). As noted above, the veteran has presented competent medical evidence that he has been diagnosed with restrictive airway disease and squamous cell carcinoma of the skin. Although the veteran provided a copy of a prescription for eyeglasses, he has not presented any medical evidence that he has a current eye disorder for which service connection may be established. Refractive error is not a disability for VA compensation purposes. 38 C.F.R. § 3.303(c) (1999). A review of the available service medical records reveals no complaints or abnormalities referable to any respiratory or eye problems, or skin cancer. His report of medical examination at entrance into active service, dated in April 1942, evidences that his lungs and skin were normal, and that his visual acuity was 20/20, bilaterally. Likewise, his report of medical examination at discharge from active service in October 1945 shows normal lungs and skin, and his visual acuity was unchanged. On the question of direct service incurrence, the threshold question to be answered is whether the veteran has presented evidence of a well-grounded claim with respect to the issue of service connection for residuals of exposure to noxious gases, claimed as mustard gas. While the veteran believes that his restrictive airway disease, eye disorder and skin cancer are related to service, he has not presented any competent medical evidence to support his lay assertions. This is required under Caluza, discussed above, to establish a well-grounded claim. The veteran, as a layman, is not competent to provide an opinion regarding medical causation or the etiological relationship between any claimed disability now present and service. See Espiritu. The service medical records are negative for any complaints, findings or diagnosis referable to any respiratory disorder, eye problems or skin cancer during service. While the evidentiary record shows that the veteran has restrictive airway disease and had a skin cancer lesion surgically removed, the medical reports do not offer any opinion as to the etiology of the disabilities. Moreover, the veteran's respiratory disease and skin cancer were first shown in 1993, some forty-eight years after his discharge from service. The onset of skin cancer is too remote from service to establish service connection on the basis of presumptive service incurrence. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Therefore, in the absence of evidence of a nexus between any current respiratory disorder, eye disorder, or skin cancer and military service, there is no basis to find that the claims are well grounded. Finally, to the extent that Mr. [redacted] relates the veteran's current disability to exposure to mustard gas, it must be noted that there is no evidence of such exposure. Mr. [redacted] has no personal knowledge of such exposure and based his opinion on information provided the veteran. As such, any opinion he provided is based on an inaccurate factual premise; i.e. that the veteran was exposed to mustard gas in service and must be discounted. If a claim is not well grounded, the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet. App. 14 (1993). Accordingly, the veteran cannot invoke the VA's duty to assist in the development of the claim under 38 U.S.C.A. § 5107(a) (West 1991). Grivois v. Brown, 6 Vet. App. 136 (1994). ORDER To the extent that new and material evidence has been submitted to reopen the claim of service connection for defective hearing on a direct basis, the appeal to reopen is granted. To the extent that new and material evidence has not been submitted to reopen the claim of service connection for defective hearing on a secondary basis, the appeal is denied. As new and material evidence has not been submitted to reopen the claim of service connection for a back disorder, the appeal is denied. As new and material evidence has not been submitted to reopen the claim of service connection for a disability manifested by a loss of balance, the appeal is denied. Service connection for a respiratory disorder, eye disorder and skin cancer due to exposure to mustard gas is denied. REMAND The veteran and his representative contend that his hearing problems began in service and were caused by exposure to acoustic trauma from artillery fire. In the alternative, it is argued that his hearing loss could have been caused by repeated dosages of anti-malarial medications, including large dosages of quinine. In view of the favorable decision by the Board that new and material evidence has been submitted to reopen the claim of service connection for defective hearing, the RO must now consider the issue on a de novo basis. Accordingly, the case is REMANDED to the RO for the following action: 1. The veteran should be requested to furnish the names and addresses of all medical care providers who treated him for hearing loss in recent years. He should also be notified of the need to file evidence of a well grounded claim for service connection for hearing loss due to ingestion of anti-malarial medications, including quinine. If he submits evidence of a medical nexus, the RO should request a medical opinion as to whether it is at least as likely as not that anti-malarial medications taken in service caused the veteran's current hearing loss. If the decision is unfavorable to the veteran, this matter should be addressed in the Supplemental Statement of the Case to be issued the veteran. 2. The RO should schedule the veteran for a VA ear and audiological examination to determine the nature and, if possible, etiology of the veteran's hearing loss. The examiner should review the entire claims folder, and all appropriate tests should be conducted. The examiner should describe all findings in detail and provide a complete rationale for all opinions offered. If the examiner is unable to make any determination as to the etiology, she/he should so state and indicate the reasons. The examiner should comment on the opinion expressed in the July 1996 VA examination, and indicate whether he agrees or disagrees with this physician's opinion. The rationale for any agreement or disagreement should be specified. The findings should be typed or otherwise recorded in a legible manner for review purposes. The examiner should provide answers to the following: a. Does the veteran have a hearing loss at present? If so, what is the nature of the hearing loss? b. If defective hearing is found, is it at least as likely as not that it was caused by acoustic trauma in service? 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the report does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999). 4. After the requested development has been completed, the RO should readjudicate the veteran's claim on a de novo basis, with application of all appropriate laws and regulations, and any additional information obtained as a result of this remand. If the veteran is scheduled for another examination and he fails to show up for the examination, the letter notifying him of the place, date and time of the examination, and containing the veteran's address, should be included in the claims folder. If the benefits sought on appeal remain denied, the veteran and his representative should be furnished a Supplemental Statement of the Case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate review, if in order. The Board intimates no opinion, either legal or factual, as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Iris S. Sherman Member, Board of Veterans' Appeals