Citation NR: 9627143 Decision Date: 09/23/96 Archive Date: 10/03/96 DOCKET NO. 94-40 240 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for rheumatoid arthritis due to exposure to Agent Orange. 2. Entitlement to service connection for skin disorders due to exposure to Agent Orange. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Michael J. Hansen, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Gallagher, Associate Counsel INTRODUCTION The veteran had active service from August 1967 to March 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 1994 rating decision. The veteran appeared at a hearing in December 1994 before a Hearing Officer at the RO, during which he withdrew his appeal on the issue of entitlement to service connection for peripheral neuropathy due to exposure to Agent Orange. The Board notes that the veteran has also filed a claim for entitlement to service connection for post-traumatic stress disorder. However, it does not appear that the veteran has filed an appeal on that issue, therefore it is not yet ready for appellate review.The issues of service connection for skin disorders and tinnitus are the subject of a remand section of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his rheumatoid arthritis was caused by exposure to the herbicide Agent Orange during his military service in the Republic of Vietnam. DECISION OF THE BOARD The 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 files. 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 evidence of a well-grounded claim for service connection for rheumatoid arthritis due to exposure to Agent Orange. FINDINGS OF FACT 1. Sufficient evidence necessary for an equitable disposition of the issue on appeal has been obtained by the RO. 2. The veteran had over 14 months of active military service in the Republic of Vietnam during the Vietnam Era. 3. The veteran began to experience swelling and pain in his knees, feet, and fingers in late 1973 and early 1974, over four years after his discharge from service; a diagnosis of non-specific arthritis was first made in May 1974, and was subsequently changed to rheumatoid arthritis. 4. Rheumatoid arthritis is not recognized by VA as etiologically related to exposure to herbicides, such as Agent Orange, which were used in the Republic of Vietnam during the Vietnam Era. 5. No medical evidence has been presented to show a direct causal connection between rheumatoid arthritis and exposure to Agent Orange during the veteran’s military service in the Republic of Vietnam. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim for service connection for rheumatoid arthritis, due to exposure to Agent Orange in the Republic of Vietnam. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e) (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered at the outset of the analysis of any issue is whether the veteran’s claim is well- grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The United States Court of Veterans Appeals has held that the statutory “duty to assist” under 38 U.S.C.A. § 5107(a) does not arise until there is a well-grounded claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). A veteran has the duty to submit evidence that a claim is well-grounded. The evidence must “justify a belief by a fair and impartial individual” that the claim is plausible. 38 U.S.C.A. § 5107(a). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, 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. No condition other than one listed in 38 C.F.R. § 3.309(a) will be considered chronic. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116 (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.307(a), 3.309. 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) 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) 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). For presumptive service connection to apply, the diseases listed at 38 C.F.R. § 3.309(e) must have become manifest to a degree of 10 percent or more at any time after service, except that Cloracne or other acneform disease consistent with Cloracne and Porphyria Cutanea Tarda must 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). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans’ Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3rd 1039, 1045 (Fed. Cir. 1994). However, the Court of Veterans Appeals has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In this case, the evidentiary assertions as to the claim of service connection for rheumatoid arthritis, due to exposure to Agent Orange during active service in the Republic of Vietnam as a truck driver, mechanic, and artilleryman, are not credible when viewed in the context of the total record in this case. The veteran’s service medical records showed no complaints or findings of any type of arthritis. Further, in the history portion of his March 1969 service separation examination report, the veteran checked blocks indicating that he had not had any swollen or painful joints, foot trouble, or arthritis. In May 1974, over 5 years after service discharge, the veteran was treated as an inpatient at a VA Medical Center (VAMC). He presented with a complaint of a six month history of swelling and pain in his feet and fingers. The diagnoses included non-specific arthritis. The report of the veteran’s inpatient stay at a VAMC from January to early March 1975 noted that the veteran’s arthritic symptoms began with swelling in his knees in the Winter of 1973, then in Spring 1974 his ankles and feet began to swell, and in September 1974 his hands began to swell. It was noted that there was no urethral discharge or conjunctivitis which might have indicated Reiter’s Syndrome. The veteran was again admitted to a VAMC in December 1975 for treatment of his arthritis. The veteran was afforded a VA examination in May 1976. At that time he complained of swollen hands, ankles, wrists, and knees. The diagnoses included “variant of rheumatoid arthritis”. The claims file contained reports of the veteran’s outpatient treatment at VA medical facilities from August 1979 through March 1988, his inpatient treatment at a VAMC in March 1982, and VA examinations conducted in July 1982, August 1988, February 1994, and December 1994. None of those reports contained any medical opinion supporting the veteran’s claim that his rheumatoid arthritis was due to exposure to Agent Orange during his active service. Additionally, the claims file contained the report of a special VA Agent Orange protocol examination conducted in December 1991. Although the examiner noted that the veteran had rheumatoid arthritis, he did not relate that diagnosis etiologically to exposure to Agent Orange, or to the veteran’s active service. In support of his claim, the veteran submitted documents relating to his Social Security Administration award of disability payments based on his rheumatoid arthritis. However, those documents do not provide any evidence showing a causal relationship between that disability and the veteran’s military service. Further, in January 1994, the veteran submitted a letter from his mother which stated, in pertinent part, that when he returned home from the Republic of Vietnam, his feet and knuckles would swell up, and his feet and arms would ache. She reported that he took aspirin for those symptoms. During his December 1994 hearing before a Hearing Officer at the RO, the veteran testified that while he was in the Republic of Vietnam, he had aches and pains in his knees and shoulders, which were worse in the rainy season. He stated that the aching in his joints continued after his separation from service and that he first self-treated with aspirin. He reported that he later went to “Holdredge” sometime between 1970 and 1972 and got a stronger medication, which contained codeine, for his aching joints. In January 1995, a report was received from the United States Army & Joint Services Environmental Support Group which noted, inter alia, that, during his active service, the veteran was stationed at Dian in the Republic of Vietnam during a period of time when there were some herbicide spray missions in that vicinity. In this case, there is no competent medical evidence suggesting a connection between the appellant’s presumed herbicide exposure while in the Republic of Vietnam, and his subsequent development of rheumatoid arthritis. Although the veteran has asserted that his rheumatoid arthritis was caused by exposure to Agent Orange, and his mother has asserted that he suffered aching and swollen joints upon his separation from active service, their assertions alone are not probative on the issue of medical causation, because lay persons are not considered legally competent to offer medical opinions. Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In cases where the service medical records do not show the claimed disability during service, and where there is no medical evidence to link a current disability with the veteran’s active service, the claim is not well-grounded. See Montgomery v. Brown, 4 Vet.App. 343 (1993); Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Although the veteran argues that his exposure to Agent Orange while in the Republic of Vietnam resulted in the development of rheumatoid arthritis, that disorder is not recognized as one of the diseases attributable to Agent Orange exposure. Consequently, in the absence of competent medical evidence of a relationship between Agent Orange exposure and his rheumatoid arthritis, the claim is not well-grounded, and must therefore be denied. ORDER As a well-grounded claim for service connection for rheumatoid arthritis due to exposure to Agent Orange has not been submitted, the appeal is denied. REMAND The veteran contends that his skin disorders were caused by exposure to Agent Orange during his active service for over 14 months in the Republic of Vietnam as a truck driver, mechanic, and artilleryman. He further contends that he suffers from tinnitus related to high frequency hearing loss due to acoustic trauma experienced while stationed in that country. He has asserted that one of his duties was to fire 105 and 155 Howitzer artillery pieces. Upon review of all the evidence contained in the claims file, the Board noted that the veteran has apparently never had a complete VA audiological examination, including audiogram, performed. The claims file does contain the veteran’s reference audiogram, conducted during his August 1967 service entrance examination, which showed a mild high frequency hearing loss, not considered disqualifying. No complaints or findings of tinnitus were contained in the service medical records, although it should be noted that the report from his March 1969 service separation examination appears to be incomplete, and does not contain pertinent findings relating to his ears and his hearing. Although the veteran testified in his December 1994 hearing before a Hearing Officer at the RO that he had some exposure to high levels of noise shortly after his separation from service, the Board noted that he has been unemployed since approximately 1975 due to his non- service-connected rheumatoid arthritis. Thus, the likelihood that he was exposed to post-service high levels of noise decreased after that year. Given the veteran’s documented service as an artilleryman, the Board believes a thorough VA audiological examination is warranted prior to rendering an appellate decision on the appeal on the issue of service connection for tinnitus. With regard to the issue of service connection for the veteran’s skin disorders as due to exposure to Agent Orange, the Board noted that it appears the veteran suffers from at least two distinct types of skin disorders. One, which has been variously categorized as dry skin, xerotic eczema, macular rash, and erythematous rash, manifests as scaly patches in different places on his body, such as his forearms, trunk, and legs, at different times, and is apparently affected by the level of emotional stress which the veteran is experiencing. The other skin disorder was most recently diagnosed during the veteran’s February 1994 VA examination as cystic acne, and was described as an acneform condition with scarring and double comedones on the back. However, the Board noted that a VA examiner in May 1976 described the skin disorder on the veteran’s back as severe tropical acne, developed while in the Republic of Vietnam. That assessment appears consistent with the skin disorder seen in the photographs taken of the veteran’s back during his July 1982 VA examination, which are contained in the claims file. During an August 1988 VA examination, the skin disorder was diagnosed as acne vulgaris, possibly residual to Chloracne. The Board further noted that during the veteran’s Agent Orange protocol examination performed in December 1991, the skin disorder was diagnosed as Chloracne. Given the different diagnoses which have been made over the years of the skin disorder on the veteran’s back, and the fact that certain of those diagnoses do raise the possibility of an etiological relationship to exposure to Agent Orange, the Board believes that additional evidence in the form of an opinion by a specialist in dermatology is necessary to reconcile the differing diagnoses prior to an appellate decision on this issue. Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should take appropriate steps to obtain and associate with the veteran’s claims file all VA and private medical records of examinations and treatment for the veteran’s claimed disabilities, which are not already contained therein. 2. Once the above-listed development has been completed to the extent possible, the veteran should be afforded VA audiological and skin disorders examinations by qualified physicians who are specialists in those respective fields, to ascertain the nature and extent of his claimed ear and skin disabilities. The claims file, including this REMAND, should be made available to the examiners for review before the examinations for proper review of the medical history. The examination reports are to reflect whether such reviews of the claims file were made. The examinations should be conducted in accordance with the Physician’s Guide for Disability Evaluation Examinations. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail. The report of the audiological examination should include an audiogram, as well as the examiner’s opinion as to whether the veteran suffers from tinnitus, and the likelihood that such disability (if any) is related to hearing loss due to acoustic trauma suffered during his active service as an artilleryman. The report of the skin disorders examination should include the examiner’s opinion as to what types of skin disorder(s) are present (in light of the varying diagnoses found in the reports of the May 1976, July 1982, August 1988, December 1991, and February 1994 VA examinations) and their relationship (if any) to the veteran’s active service in the Republic of Vietnam and presumed exposure to Agent Orange, as well as the examiner’s opinion on the issue of whether the pitting, scarring, comedones, and papules on the skin on the veteran’s back are due to tropical acne, Chloracne, cystic acne residual to tropical acne, or some other skin disorder. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been received, remains denied, the appellant 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, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until otherwise notified. WAYNE M. BRAEUER 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, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that 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 -