Citation Nr: 0010055 Decision Date: 04/14/00 Archive Date: 04/20/00 DOCKET NO. 96-05 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for arthritis of the right hand. 2. Entitlement to service connection for benign stromal tumor of the stomach secondary to Agent Orange exposure. 3. Entitlement to service connection for dermatitis on the posterior neck and lower extremities secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from January 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied the benefits sought on appeal. FINDINGS OF FACT 1. There is no competent medical evidence of record suggesting a nexus or relationship between the veteran's arthritis of the right hand and his period of active service. 2. There is no competent medical evidence of record suggesting a nexus or a relationship between the veteran's benign stromal tumor of the stomach and his period of active service or exposure to Agent Orange during service. 3. The record contains the veteran's allegation that he was exposed to Agent Orange during active service and medical evidence linking dermatitis on the posterior neck and lower extremities to the alleged in-service exposure. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for arthritis of the right hand is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a benign stromal tumor of the stomach secondary to Agent Orange exposure is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of entitlement to service connection for dermatitis on the posterior neck and lower extremities secondary to Agent Orange exposure is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues before the Board are whether the veteran is entitled to service connection for (1) arthritis of the right hand, (2) benign stromal tumor of the stomach secondary to Agent Orange exposure and (3) dermatitis on the posterior neck and lower extremities secondary to Agent Orange exposure. Before reaching the merits of the veteran's claims, the Board must first determine whether the veteran has presented sufficient evidence to justify a belief by a fair and impartial individual that his claims are well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of well-grounded claims, there is no duty to assist the veteran in developing the facts pertinent to his claims, and the claims must fail. Epps v. Gober, 126 F.3d 1464, 1467-1468 (Fed. Cir. 1997). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). For certain diseases, including arthritis, if an in-service incurrence cannot be established for that condition on a direct basis, service connection may be granted on a presumptive basis provided certain criteria are met. In such a case, the veteran must have served 90 days or more during a period of war or after December 31, 1946, and arthritis must have manifested to a degree of at least 10 percent within one year from the date the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Further, if a veteran served on active duty in Vietnam during the Vietnam era, service connection may also be presumed for some diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6). For claims based on chronic effects of exposure to Agent Orange, service connection may be established by presumption for certain diseases, specified by statute, which are manifested to a degree of at least 10 percent within a certain time period after separation from service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). A claimant may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b)(1999), which is applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that same condition currently exists. Such evidence must be medical unless the condition at issue is one which, under case law, lay observation is considered competent to prove its existence. Initially, the Board notes that the veteran contends that he developed a benign stromal tumor of the stomach and dermatitis on the posterior neck and lower extremities secondary to Agent Orange exposure during his service in Vietnam. However, the Board notes that these conditions are not included in the list of diseases for which a veteran may be entitled to a presumption of Agent Orange exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e); McCartt v. West, 12 Vet. App. 146 (1999). Nevertheless, although the veteran in this case may not establish service connection for a benign stromal tumor of the stomach or dermatitis on the posterior neck and lower extremities on a presumptive basis based on Agent Orange exposure, he may still establish service connection on a direct basis, including as due to Agent Orange exposure. Combee v. Brown, 34 F.3d 1039, 1045 (Fed. Cir. 1994) (holding that the Veterans' 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). Arthritis of the right hand The veteran's service medical records are negative for complaints of or treatment for arthritis of the right hand. An April 1995 VA examination report shows that the veteran gave a history of injuring his right hand when he fell while engaged in an exercise in Vietnam in 1969. During the examination, the veteran complained of his right hand going to sleep and of having constant pain along the ulnar aspect. X-rays of the right hand show that the veteran's right hand was within normal limits. The veteran was diagnosed with arthritis of the right hand. The veteran was also diagnosed with ulnar nerve compression at Guyon's canal of the left hand, which the examiner stated could have been caused by the in-service injury that the veteran described. However, a review of the April 1995 VA examination report indicates that the examiner inadvertently referenced the veteran's left hand and that he intended to state that the veteran had ulnar nerve compression at Guyon's canal of the right hand. In any event, the examiner did not suggest that the veteran's arthritis of the right hand is the result of any injury incurred during his period of active service. On a VA-Form 9 (Appeal to Board of Veterans' Appeals) dated December 1995, the veteran indicates that his right hand was injured during service when it became lodged between a round and a breechblock. During a personal hearing held in October 1996, the veteran indicated that when he injured his right hand, he was not sent to the hospital. Instead, a corpsman bandaged the veteran's hand in the field, and no record was made of the treatment. The veteran further testified that several years after he was discharged from service, he sought treatment for his hand. The veteran indicated that his right hand is weaker than it was before the accident and that he has constant pain in his right hand. He stated that he is right handed and that as a construction worker, his hand injury makes it difficult for him to use certain tools. For the limited purpose of determining whether a claim is well grounded, the Board must accept evidentiary assertions as true, unless those assertions are inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). As such, even though there is no record of an in- service right hand injury, the Board accepts the veteran's allegations that he injured his right hand while engaged in active service as true. Despite this though, the veteran has failed to submit sufficient evidence to well ground his claim of entitlement to service connection for arthritis of the right hand. The competent medical evidence of record establishes that the veteran has a current diagnosis of arthritis of the right hand. The evidence does not show that the veteran's arthritis manifested to a compensable degree within one year of his discharge from service and he is therefore not entitled to service connection on a presumptive basis. Likewise, beyond his own statements, the veteran has failed to submit medical evidence of a nexus between the current diagnosis of arthritis of his right hand and his period of active service. While the veteran clearly believes that his current disorder is related to his period of active service, the veteran, as a lay person is not competent to offer an opinion that requires medical expertise, such as the etiology of the arthritis of his right hand and whether it is related to his period of active service. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In the absence of such competent medical evidence, the veteran has not submitted a well-grounded claim for service connection on a direct basis and his claim must be denied. The Board is unaware of the existence of any relevant evidence, if obtained, that would serve to well ground the veteran's claim for service connection for arthritis of the right hand. Should the veteran obtain such evidence, he may request the RO to again consider these claims for service connection. McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997) (per curiam). Benign stromal stomach tumor and dermatitis of the posterior neck and lower extremities The veteran also claims that he is entitled to service connection for a benign stromal tumor of the stomach as well as dermatitis on the posterior neck and the lower extremities secondary to Agent Orange exposure during his period of active service in Vietnam. Specifically, the veteran alleges that in May 1969 he was directly sprayed with Agent Orange. He also indicates that while he was not involved in handling or spraying Agent Orange, he believes that in July 1969 he was in an area that had been recently sprayed with Agent Orange and that his food was contaminated by Agent Orange. During his personal hearing at the RO in October 1996, the veteran testified that he was exposed to frequent sprayings of Agent Orange and that he believes that the water in which he bathed and the water that he drank was contaminated by Agent Orange. As with his claim for service connection for arthritis, the veteran's service medical records are negative for complaints of or treatment for a benign stromal tumor of the stomach or dermatitis of the posterior neck or lower extremities. The veteran's post-service treatment for the disorders in question are discussed below. Benign stromal stomach tumor With regard to the veteran's claim for entitlement to service connection for a benign stromal tumor of the stomach, post- service medical records show that the veteran underwent surgery for the removal of the tumor in February 1995. During an April 1995 VA examination the veteran gave a history of undergoing three surgeries involving the gastrointestinal regions over a period of 11 years, with the February 1995 surgery resulting in the removal of approximately one third of his stomach. The veteran reported some postoperative epigastric pain. The VA examiner diagnosed the veteran with postoperative appendectomy in 1984, postoperative cholecystectomy in 1989 and postoperative partial gastrectomy for a benign tumor in February 1995. The veteran's records do not contain a medical opinion relating the benign stromal stomach tumor to his period of active service or to exposure to Agent Orange. The record shows that the veteran underwent surgery for the removal of a benign stromal tumor of the stomach. However, as previously stated, benign stromal stomach tumors are not included in the list of conditions for which a veteran is entitled to a presumption of Agent Orange exposure. Thus, the veteran is not entitled to a presumption of service connection for his stomach tumor. Likewise, the veteran has not submitted any evidence suggesting a link or nexus between his benign stomach tumor and his period of active service and exposure to Agent Orange. As such, the veteran has not provided sufficient evidence to merit a grant of service connection on a direct basis. Combee, 34 F.3d at 1045. There is no evidence of record, beyond the statements of the veteran, to show that the veteran's stromal stomach tumor developed as a result of his period of active service, including any exposure to Agent Orange. As the veteran is a lay person, he is not competent to offer an opinion that requires medical expertise, such as the cause or etiology of his stromal stomach tumor. Espiritu, 2 Vet. App. at 494-95. His assertions alone are insufficient to establish the required nexus between the development of the stomach tumor and his period of active service. In the absence of medical evidence etiologically linking the veteran's stomach tumor to his period of active service, the veteran's claim must be denied as not well grounded. As with the veteran's claim of entitlement to service connection for arthritis of the right hand, the Board is unaware of the existence of any relevant evidence, if obtained, that would serve to well ground the veteran's claim for service connection for a benign stromal tumor of the stomach. Should he obtain such evidence, he may request the RO to again consider these claims for service connection. McKnight, 131 F.3d at 1485. Dermatitis on the posterior neck and lower extremities In connection with the veteran's claim of entitlement to service connection for dermatitis on the posterior neck and lower extremities, secondary to Agent Orange exposure, post- service medical records show that the veteran was afforded a VA examination in April 1995. At that time, the veteran described having a dry, itchy, fine, red rash since his service in Vietnam. He indicated that he had a history of the rash on his neck and all over his body, especially on his lower extremities. Physicial examination revealed dry skin on the posterior of the veteran's neck, but no rash was noted. However, fine petechial, reddish rash patches were noted on the skin of the lower extremities. The examiner diagnosed the veteran with chronic dermatitis affecting the posterior neck and the lower extremities and indicated that this rash was probably secondary to Agent Orange exposure. The veteran was afforded another VA examination in January 1997. The veteran presented with complaints of a rash on his lower extremities, neck, forearms and feet. Physical examination revealed a fine, dry, red rash with some petechial islands. There was scabbing over the lower extremities, more so on the right and an excoriated strip across the medial aspect of the arch of the right foot. The examiner diagnosed the veteran with a fine, dry rash of unknown etiology. The examiner also indicated that it did not appear that the veteran's rash was related to his period of active service. After reviewing the aforementioned evidence, the Board concludes that the veteran has submitted a well-grounded claim for service connection for dermatitis on the posterior neck and lower extremities secondary to Agent Orange exposure. The veteran contends that he was exposed to Agent Orange during his service in Vietnam. Based on his contention, which is presumed to be credible for the purpose of determining well groundedness, and an April 1995 VA examiner's opinion linking the veteran's dermatitis to Agent Orange exposure, the Board finds the claim well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board also finds, however, that VA has not fulfilled its duty to assist by obtaining and fully developing all relevant evidence necessary for the equitable disposition of this claim. A remand is thus necessary before the Board can determine the merits of the veteran's claim. ORDER 1. Evidence of a well-grounded claim not having been submitted, service connection for arthritis of the right hand is denied. 2. Evidence of a well-grounded claim not having been submitted, service connection for a benign stromal tumor of the stomach is denied. 3. The claim of entitlement to service connection for dermatitis on the posterior neck and lower extremities is granted only to the extent it is found to be well grounded, and is subject to the development requested below. REMAND The medical evidence of record establishes that the veteran currently has dermatitis on the posterior neck and lower extremities, which he alleges developed as a result of his exposure to Agent Orange. Inasmuch as the veteran does not have one of the diseases listed at 38 C.F.R. § 3.309(e), under 38 C.F.R. § 3.307(a)(6)(iii), the Board may not presume that the veteran was exposed to Agent Orange, or any other herbicide agent, during active service. Rather, in determining whether the alleged exposure actually occurred, the Board must rely on other evidence, including service personnel records. At present, the claims file contains some service personnel records; however, these records do not mention Agent Orange or any other herbicide agent. Accordingly, on Remand, the RO should contact the veteran's service department and endeavor to verify whether the alleged exposure actually occurred. In addition, the veteran has submitted a medical opinion linking his dermatitis to in-service exposure to Agent Orange. However, the VA examiner who provided this opinion did not include the rationale upon which this opinion is based. In light of the foregoing, the Board believes that another medical examination should be conducted for the purpose of obtaining a more comprehensive medical opinion regarding the etiology of the veteran's disorder. To ensure that the record contains all evidence necessary for an equitable disposition of the veteran's claim, this case is REMANDED to the RO for the following development: 1. The RO should contact the veteran's service organization, and any other appropriate authorities, and inquire as to whether it is at least as likely as not that the veteran was exposed to an herbicide agent during active service from January 1969 to December 1970. The RO should document all responses received and obtain and associate with the claims file any outstanding service personnel records pertinent to this issue. 2. Thereafter, and only if the RO receives verification of the veteran's exposure to an herbicide agent, the RO should afford the veteran a VA examination for the purpose of determining the etiology of his dermatitis. Prior to the examination, the RO should furnish the examiner with the veteran's claims file and a copy of this Remand for review. Following a thorough evaluation, during which all indicated studies and tests are conducted, the examiner should: indicate whether the veteran has dermatitis; offer an opinion as to whether it is at least as likely as not that this disorder is related to the particular herbicide agent(s) to which the veteran was exposed during active service; and discuss whether and why he or she agrees with the medical opinion of record. The examiner should include detailed rationale for all opinions expressed. 3. The RO should review the examination report to determine whether it complies with the previous instruction. If the report is inadequate, it should be returned to the examiner for completion. 4. Thereafter, the RO should readjudicate the veteran's claim based on the additional evidence received. If the benefit sought is denied, the RO should furnish the veteran and his representative a supplemental statement of the case and afford them an opportunity to respond thereto before the case is returned to the Board for further appellate review. The purpose of this Remand is to obtain additional service and medical information. By remanding this claim, the Board intimates no opinion, favorable or unfavorable, as to its merits. The veteran is free to submit any additional evidence he wishes to have considered in connection with his appeal; however, he is not required to act until further notified. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is hereby notified that a failure to report to a scheduled examination might result in the denial of his claim. WARREN W. RICE, JR. Member, Board of Veterans' Appeals