Citation NR: 9605461 Decision Date: 03/06/96 Archive Date: 03/16/96 DOCKET NO. 94-18 237 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for porphyria cutanea tarda as a result of herbicide agent exposure. 2. Entitlement to service connection for chloracne as a result of herbicide agent exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James A. Frost, Counsel INTRODUCTION The veteran served on active duty from March 1968 to September 1969, with service in the Republic of Vietnam. This appeal arose from rating decisions in March 1993 and September 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that exposure to the herbicide Agent Orange in Vietnam caused the development of porphyria cutanea tarda and chloracne. 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's claim of entitlement to service connection for porphyria cutanea tarda is not well grounded and must be dismissed. FINDING OF FACT A claim of entitlement to service connection for porphyria cutanea tarda is not plausible or capable of substantiation. CONCLUSION OF LAW A claim of entitlement to service connection for porphyria cutanea tarda is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service medical records are negative for any complaints, diagnosis or treatment of liver disease or any other hepatic disorder. During hospitalization at a VA facility in December 1969 a physical examination showed the liver to be palpable at admission, but it was not palpable at discharge from the hospital. At a VA examination in May 1970 there was no abdominal organomegaly. A VA outpatient treatment note in April 1986 for an Agent Orange registry examination showed elevated liver enzymes. A VA hospital summary in May 1986 showed questionable enlargement of the liver without palpatory tenderness. At a VA examination in September 1986 there was no hepatosplenomegaly. No physician has ever rendered a diagnosis of porphyria cutanea tarda in the veteran's case. Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110. If a veteran was exposed to a herbicide agent during active service, service connection may be granted for porphyria cutanea tarda, even though there is no record of such disease during service, if the disease becomes manifest to a degree of 10 percent or more at any time after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A person who submits a claim for VA benefits shall have the burden of submitting evidence sufficient to justify belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91 (1993). A claimant cannot meet this burden simply by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In the veteran's case there is no competent medical evidence that he has ever had porphyria cutanea tarda, and no physician has ever rendered such a diagnosis. He is not qualified himself to make a medical diagnosis. The claim of entitlement to service connection for porphyria cutanea tarda is thus not well grounded and will be dismissed. 38 U.S.C.A. § 5107(a). Although the Board considered and decided this appeal on a ground different from that of the RO, which denied the claim on the merits, the appellant has not been prejudiced by the Board’s decision because, in assuming that the claim was well grounded, the RO accorded the claimant greater consideration than her claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the appellant’s claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to her. VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for service connection for porphyria cutanea tarda. Robinette v. Brown, 8 Vet.App. 69, 77-78 (1995). ORDER A claim of entitlement to service connection for porphyria cutanea tarda as a result of herbicide agent exposure having been found to be not well grounded, the appeal on that issue is dismissed. REMAND The Board finds that the claim of entitlement to service connection for chloracne is well grounded because one physician has stated an opinion that the veteran has had chloracne. VA thus has a duty to assist him in the development of the facts pertinent to that claim. 38 U.S.C.A. § 5107(a). Service medical records show treatment for athlete's foot in April 1968; service medical records are otherwise negative for skin problems. At an examination for service separation no skin disease was noted. During VA hospitalization in December 1969 the veteran's skin was noted to be hot and dry; a skin rash was not reported. At a VA examination in May 1970 scaling and peeling of the skin was found, with maceration between the 4th and 5th toes, diagnosed as dermatophytosis of the feet. No skin rash elsewhere on the body was found. A rating decision in July 1970 granted service connection for dermatophytosis of the feet and assigned a noncompensable evaluation. By a decision in September 1987 the Board of Veterans' Appeals denied entitlement to a compensable rating for dermatophytosis. A VA outpatient treatment note in April 1986 showed skin lesions diagnosed as an acute rosacea and folliculitis of the back and abdomen. At a VA examination in September 1986 multiple 2-millimeter pustules and multiple 2- to 5-millimeter papules in the belt line area were found. In December 1992 Antreas Mesrobian, MD, Medical Director of a prison in Illinois, where the veteran was incarcerated, reported that he had seen the veteran since May 1988 for a skin rash. In September 1992 a biopsy of abdominal skin tissue was diagnosed as an epidermal inclusion cyst with inflammation. Dr. Mesrobian offered an opinion that the veteran's skin lesions were chloracne, probably due to Agent Orange exposure. In December 1992 the veteran stated in a letter to his representative that he first noticed chloracne in November 1969. The Board believes that it would be beneficial to determine whether the veteran currently has the skin disorder known as chloracne prior to a final disposition of the appeal. Accordingly, this case is REMANDED to the RO for the following: 1. The RO should request that the veteran identify each physician and medical facility, VA or non-VA, which has treated him for skin disease since December 1992. After obtaining any necessary authorizations from the veteran, the RO should attempt to secure copies of all such clinical records. 2. The RO should schedule the veteran for an examination by a specialist in dermatology. The examiner should determine the nature and symptomatology of all current skin disorders. Specifically, he or she should determine whether the veteran has chloracne. In the event that the veteran does have chloracne, the examiner should comment on Dr. Mesrobian’s opinion in December 1992 as to the etiology of chloracne. Following completion of these actions, the RO should review the evidence and determine whether the veteran’s claim of entitlement to service connection for chloracne as a result of herbicide agent exposure may now be granted. If the decision remains adverse to the veteran, he and his representative should be provided with an appropriate Supplemental Statement of the Case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. The purpose of this REMAND is to obtain clarifying medical information. By this REMAND the Board intimates no opinion, legal or factual, as to the ultimate disposition of the appeal. No action is required of the veteran until he receives further notice. BRUCE KANNEE 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. Appellate rights do not attach to the issue addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. §20.1100(b)(1994). - 2 -