Citation NR: 9609774 Decision Date: 04/10/96 Archive Date: 04/24/96 DOCKET NO. 89-08 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for gouty arthritis of multiple joints, colitis, a psychiatric disorder, and a skin disorder, claimed as residuals of Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. A. Samorajczyk, Associate Counsel INTRODUCTION The veteran served on active duty from November 1967 to July 1969. In his June 1988 substantive appeal, the veteran stated that he did not wish to pursue the issues of entitlement to service connection for refractive error, a fungus infection, and passive aggressive personality disorder. The issues of entitlement to service connection for gouty arthritis of multiple joints, colitis, a psychiatric disorder, and a skin disorder, other than photosensitivity, claimed as residuals of Agent Orange exposure, are addressed in the body of this decision. The issue of entitlement to service connection for photosensitivity secondary to Agent Orange exposure is addressed in the Remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that gouty arthritis of multiple joints, colitis, a skin disorder, and a psychiatric disorder resulted from Agent Orange exposure, since he did not have these problems before service. He recalls that he first experienced symptoms of these disorders in service. DECISION OF THE BOARD The Board of Veterans’ Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted well-grounded claims for service connection for gouty arthritis of multiple joints, colitis, anxiety reaction, tinea cruris, and a skin disorder manifested by susceptibility to allergic contact dermatitis, claimed as residuals of exposure to Agent Orange. FINDINGS OF FACT 1. The veteran had active service in Vietnam during the Vietnam era. 2. No competent evidence of a nexus between an in-service disease or injury and gouty arthritis of multiple joints, colitis, anxiety reaction, tinea cruris, and a skin disorder manifested by susceptibility to allergic contact dermatitis, claimed as residuals of Agent Orange exposure, has been presented. CONCLUSION OF LAW The claims for service connection for gouty arthritis of multiple joints, colitis, anxiety reaction, tinea cruris, and a skin disorder manifested by susceptibility to allergic contact dermatitis, claimed as residuals of Agent Orange exposure, are not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Pertinent Law and Regulations Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1995). A disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309 (1995) will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (1995). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) (1995) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1995) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; Non-Hodgkin’s lymphoma; porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1995). These diseases 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, and porphyria cutanea tarda 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 military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1995). The Secretary has also determined that there was no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. 59 Fed. Reg. 341-46 (January 4, 1994). The threshold question that must be resolved with regard to each claim is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. If he has not, his appeal fails as to that claim, and the Department of Veterans Affairs (VA) is under no duty to assist him in any further development of that claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). One element of a well-grounded claim is a presently existing disability stemming from the disease or injury alleged to have begun in or been aggravated by service. Brammer v. Derwinski, 3 Vet.App. 223 (1992); Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. The Board notes that the Court of Veterans Appeals has held that there is some duty to assist a veteran in the completion of his application for benefits under 38 U.S.C.A. § 5103(a), depending on the particular facts in each case. Beausoleil v. Brown, 8 Vet.App. 459 (1996); Robinette v. Brown, 8 Vet.App. 69 (1995). The facts and circumstances of this case are such that no further action is warranted. II. Factual Background Service medical records reveal that no clinical abnormalities were noted upon service entrance examination in August 1967, other than pes planus and defective vision. In January 1968, the veteran complained of right ankle, heel, and knee pain. X-rays yielded negative results. The veteran complained of an upset stomach in March 1968 and abdominal pain in November 1968. The impression was possible adhesional shank with impending gastroenteritis. A history of an appendectomy was noted. Upon separation examination in July 1969, all systems were clinically evaluated as normal. In a June 1981 statement, a private physician reported that he had treated the veteran for stomach burn and dermatitis in 1973 and gastrointestinal upset in 1974. In a September 1982 statement, a VA medical professional reported that the veteran had been treated for recurrence of spastic colitis. VA outpatient treatment records reveal that the veteran sought treatment for gouty arthritis, tinea cruris, and problems related to psychosocial stress in 1986 and 1987. An Agent Orange protocol examination and an examination for VA compensation purposes were conducted in January 1988 and February 1988. The veteran reported a history of colitis from 1977 to 1979. A barium enema yielded normal results. He stated that he had experienced joint pains on and off since 1968, but that they had worsened since 1987. Examination revealed joint and spine pain and tenderness. The veteran traced nervous problems to 1968, and reported that he had a history of nightmares and flashbacks. The pertinent diagnoses were history of colitis, gout with hyperuricemia, arthritis of multiple joints, and anxiety reaction. The veteran reported that his skin problems in Vietnam consisted mainly of tinea cruris, which still flared mildly on occasion. He reported that he had had a few transient mild rashes on his face and arms while in Vietnam, for which he did not seek treatment. He thought that there had been an increase in sun sensitivity prior to leaving Vietnam, although he was somewhat vague about this history. He had noticed photosensitivity with easy sun burning in recent years. He stated that he sometimes developed red, splotchy areas from sun exposure that cleared within 3 to 5 days. While in Vietnam, he had had no problems suggesting chloracne. Examination revealed clear skin except for some residual hyperpigmentation and a very slight, dry scaling of the groin area. Chronic tinea cruris with mild flares, mild to moderate photosensitivity, and susceptibility to allergic contact dermatitis were diagnosed. III. Analysis Because the veteran had service in Vietnam, exposure to Agent Orange may be presumed. 38 C.F.R. § 3.307(a)(6) (1995). However, there is no evidence of any of the specified diseases entitled to a presumption of service connection as a result of exposure to herbicide agents, other than a suggestion of porphyria cutanea tarda (which is addressed in the Remand portion of this decision). 38 C.F.R. §§ 3.307, 3.309, 5107 (1995). A disease need not be specifically mentioned in these regulations if the veteran establishes by the objective medical evidence of record that there is a relationship between a current disorder and exposure to Agent Orange in service. The Court has found that while a disorder need not have been present or diagnosed in service, there must be a nexus between a current disorder and military service, even if first diagnosed after service on the basis of all of the evidence of record. See Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). Competent evidence of current disability, including gouty arthritis of multiple joints, anxiety reaction, tinea cruris, and a skin disorder manifested by susceptibility to allergic contact dermatitis, is of record. Although only a history of colitis was diagnosed upon VA examination in January 1988, the Board notes that a 1982 letter from a VA medical professional indicated possible recurrent colitis. Regardless, there is no competent evidence of a nexus between any of these disorders and service. That is, the veteran has not submitted medical evidence that tends to show that gouty arthritis of multiple joints, colitis, anxiety reaction, tinea cruris, and a skin disorder manifested by susceptibility to allergic contact dermatitis are the results of service, including exposure to Agent Orange. All systems were clinically evaluated as normal upon separation examination in 1969. Although the veteran has expressed his opinion that his gouty arthritis of multiple joints, colitis, anxiety reaction, tinea cruris, and a skin disorder manifested by susceptibility to allergic contact dermatitis are related to Agent Orange exposure in service, he does not meet the burden imposed by 38 U.S.C.A. § 5107(a) (West 1991) merely by presenting his own lay testimony, because lay persons are not competent to offer medical opinions. See Grottveit, 5 Vet.App. at 93. Therefore, the Board finds that since the appellant has only submitted his own unsubstantiated medical opinion as evidence that he incurred gouty arthritis of multiple joints, colitis, anxiety reaction, tinea cruris, and a skin disorder manifested by susceptibility to allergic contact dermatitis, claimed as residuals of Agent Orange exposure in service, he has not submitted evidence that would justify a belief by a fair and impartial individual that his claim is well grounded. Since the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) (West 1991), the claims must be denied ORDER The claims for service connection for gouty arthritis of multiple joints, colitis, anxiety reaction, tinea cruris, and a skin disorder manifested by susceptibility to allergic contact dermatitis, claimed as residuals of Agent Orange exposure, are denied. REMAND Upon VA Agent Orange protocol examination in January 1988, mild-to-moderate photosensitivity was diagnosed. It was noted that his photosensitivity problems were difficult to evaluate, but that the known relationship of Agent Orange to porphyria cutanea tarda-like symptoms “raises this possibility.” It was suggested that a 24-hour urine uroporphyrin study to rule out the possibility of any low- grade porphyria cutanea tarda be conducted. Although results of a urinalysis are of record, it is not indicated whether a 24-hour urine uroporphyrin study was performed. Accordingly, the case is REMANDED to the regional office (RO) for the following actions: 1. The RO should contact the veteran and ask that he provide the names and addresses of all health care providers who have afforded him treatment for photosensitivity and/or porphyria cutanea tarda since January 1988. After obtaining the necessary permission from the veteran, the RO should obtain copies of all treatment records and associate them with the claims folder. 2. The veteran should then be afforded a VA examination by a dermatologist to determine the nature and etiology of his photosensitivity and to determine whether porphyria cutanea tarda is present. The examiner should comment specifically on any relationship between photosensitivity and exposure to Agent Orange. All appropriate tests should be undertaken, including a 24-hour urine uroporphyrin study to rule out the possibility of any low-grade porphyria cutanea tarda. The veteran’s claims folder, or copies of the relevant records therein, to include all records requested in the preceding paragraph, must be made available to the examiner for review of pertinent medical history prior to consultation with the veteran. A complete rationale should be given for all opinions and conclusions expressed. When this development is completed, the claim should be reviewed by the RO. If the benefit sought on appeal is not granted, the veteran and his representative should be given a supplemental statement of the case with regard to the additional development and afforded the opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. No action is required of the veteran until he receives further notice. JOHN E. ORMOND, JR. Member, Board of Veterans’ Appeals The Board of Veterans’ Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1995), 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 those issues 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) (1995). - 2 -