Citation NR: 9709001 Decision Date: 03/20/97 Archive Date: 03/31/97 DOCKET NO. 96-00 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a skin disorder, claimed as a rash of the crotch and arms. 2. Entitlement to service connection for a heart disorder. 3. Entitlement to service connection for a respiratory disorder. 4. Entitlement to service connection for residuals of Agent Orange exposure. REPRESENTATION Appellant represented by: Oregon Department of Veterans’ Affairs ATTORNEY FOR THE BOARD L. A. Samorajczyk, Associate Counsel INTRODUCTION The veteran served on active duty from April 1968 to December 1969. Although the veteran received assistance from the Disabled American Veterans (DAV) during the course of his appeal, he executed a power of attorney in favor of the Oregon Department of Veterans’ Affairs in June 1996. In his November 1995 substantive appeal, the veteran appeared to express dissatisfaction with the noncompensable evaluation for his service-connected contusion of the left thigh, with patellofemoral joint syndrome of the left knee. This matter is referred to the regional office (RO) for appropriate action The veteran submitted additional evidence to the Department of Veterans Affairs (VA) following the issuance of the last supplemental statement of the case. The RO did not review this evidence in conjunction with the current appeal. The evidence is not pertinent to the issues on appeal because it is duplicative of evidence already of record. Accordingly, it is not necessary for this evidence to be initially reviewed by the RO, and a remand for due process purposes is not necessary. 38 C.F.R. § 20.1304(c) (1996). The issues of entitlement to service connection for a heart disorder and a disorder claimed as residuals of Agent Orange exposure are addressed in the Remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he developed a skin disorder and a respiratory disorder as a result of incidents of service, including exposure to Agent Orange in Vietnam. He maintains that past skin tumors and recurring skin rashes of the groin and arms are consistent with Agent Orange exposure. 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 a skin disorder and a respiratory disorder. FINDINGS OF FACT 1. No competent evidence of a nexus between an in-service injury or disease and a skin disorder, characterized as tinea cruris, by history, residuals of malignant melanomas, a questionable coronal vesicular lesion, a granuloma of the tongue, and herpes simplex, has been presented. 2. No competent evidence of a nexus between an in-service injury or disease and a respiratory disorder, characterized as chronic rhinitis and sinusitis, has been presented. CONCLUSIONS OF LAW 1. The claim for service connection for a skin disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for service connection for a respiratory disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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) (1996). A disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (1996) 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) (1996). 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) (1996) 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) (1996) 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) (1996). 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 a herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1996). In addition, service connection is warranted for acute and subacute peripheral neuropathy that manifests itself to a degree of 10 percent at or within a year after the date of the last exposure to an herbicide agent and prostate cancer that manifests itself to a degree of 10 percent at any time after exposure. See 61 Fed. Reg. 57586-57589 (1996) (to be codified at 38 C.F.R. §§ 3.307, 3.309). 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 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). 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. I. Skin Disorder Service medical records reveal that the skin was clinically evaluated as normal upon pre-induction examination in December 1967. In January 1969, the veteran complained of warts on the hands and feet. In March 1969, warts were removed from the hands. Plantar warts were treated with medication. Infected wounds on the hands from the wart removal were cleansed and medicated. Upon separation examination in December 1969, the skin was clinically evaluated as normal. The veteran reported that he had not had any skin diseases. Upon VA examination in May 1970, the skin was clinically evaluated as normal. Examination revealed facial scars and a faint oval of purplish discoloration of the skin of the left thigh. In a June 1970 rating decision, the RO granted service connection for residual shell fragment wound scars of the face, a wound of the upper left arm and palm, and a contusion of the left thigh. Private clinical records dated from 1986 to 1994 reveal that the veteran complained of fever blisters on the penis in April 1986. In May 1988, the veteran complained of episodes of left inner thigh pain that disappeared with the appearance of a penile sore, which resolved with topical hydrocortisone. He stated that he had participated in an Agent Orange study, and felt that his rash and leg pain were possibly related to injuries sustained after stepping on a land mine. A nearly- healed questionable coronal vesicular lesion was observed. A granuloma of the tongue was assessed in August 1988. In December 1988, herpes simplex was assessed, following the observation of multiple drying lesions on the penis. Moles were removed from the left forearm and left buttock in December 1993. In a January 1994 letter, a private physician reported that a melanoma had been removed from the left arm. There was no indication of a residual malignant melanoma. Upon VA examination in April 1995, the veteran complained of a history of recurrent groin and axillary rashes since his period of service. He reported that the rash was relieved with hydrocortisone cream. The rash was not an active problem at the time of the examination. In addition, the veteran reported that a malignant melanoma had been removed from his chest in 1973. He stated that a malignant melanoma had been removed from his left arm, near the antecubital fossa, in January 1994. There had been no recurrence. The veteran reported that several benign lipomas had been removed as well. Examination of the skin revealed multiple scars from resections and injuries. The relevant assessments were a history of two malignant melanomas, tinea cruris, by history, and multiple scars. Because the veteran had service in Vietnam, exposure to Agent Orange may be presumed. 38 C.F.R. § 3.307(a)(6) (1996). 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. 38 C.F.R. §§ 3.307, 3.309 (1996); 61 Fed. Reg. 57586-57589 (1996). 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). The April 1995 VA examiner’s assessment of two malignant melanomas and tinea cruris were by history only. Previous assessments have included a questionable coronal vesicular lesion, a granuloma of the tongue, and herpes simplex. Although it is unclear whether or not the veteran has a chronic skin disorder, the Board recognizes that the veteran continues to complain of rashes. Regardless, there is no competent evidence of a nexus between a skin disorder and service. Specifically, the veteran has not submitted medical evidence that tends to show that a chronic skin disorder resulted from his period of active service, which included presumed exposure to Agent Orange. The skin was clinically evaluated as normal upon separation examination in December 1969 and VA examination in May 1970. The Board is cognizant of the veteran’s recollection that rashes have recurred since his exposure to Agent Orange. However, the first medical evidence of a skin abnormality, other than injury scars and the residuals of a contusion, was more than 15 years after his discharge from service, when he complained of fever blisters on the penis. The record is devoid of medical evidence linking any post-service skin abnormality, other than the injury scars and the residuals of a contusion, to an incident of service. Although the veteran has expressed his opinion that skin rashes and melanomas are related to Agent Orange exposure, 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. Accordingly, the claim for service connection for a skin disorder must be denied. II. Respiratory Disorder Service medical records reveal that the nose, sinuses, throat, and lungs were clinically evaluated as normal upon pre-induction examination in December 1967. The veteran reported that he had experienced nasal congestion, secondary to colds, and a chronic cough. In May 1968, the veteran reported that he had wheezed the prior day. In December 1968, the veteran complained of chronic coughing and chest congestion. He reported a history of asthma. Examination revealed that the lungs were slightly wheezy. Two days later, examination revealed an inflamed pharynx. In January 1969, an upper respiratory infection and bronchitis were assessed. Upon separation examination in December 1969, the nose, sinuses, throat, and lungs were clinically evaluated as normal. The veteran reported that he had experienced chronic or frequent colds, hay fever, asthma, and a chronic cough. Upon VA examination in May 1970, the respiratory system was clinically evaluated as normal. Examination of the nose revealed a slightly irregular septum. The nasal airway was not obstructed. There were a few scattered islands of lymphoid hyperplasia on the pharyngeal wall. X-rays of the chest revealed that the lung fields were clear. The impression was of a normal chest. Private medical records dated from 1986 to 1994 reveal that a sinobronchial syndrome was assessed in February 1988. Perennial rhinitis was assessed in April 1988. In June 1989, sinusitis and a nasal septal deviation were assessed. A nasal obstruction, nasal septal deviation, hypertrophy of the inferior turbinates, and recurring left maxillary sinusitis were assessed in January 1990. A nasal septoplasty, with reduction of the inferior turbinates and a left maxillary sinus antrostomy, was performed. Allergic rhinitis was assessed in April 1990. A bronchial irritation was assessed in July 1991, and bronchitis was assessed in January 1992. In February 1993, sinusitis was assessed. Early rhinitis and bronchitis were assessed in December 1993. In March 1994, chest X-rays revealed mild hypoventilation of the lung fields. Upon VA examination in April 1995, the veteran reported a long history of allergic rhinitis and sinusitis. He stated that he had no history of lung problems, asthma, or a chronic cough. He reported frequent problems with allergies, resulting in some nasal congestion and difficulty breathing. He took antihistamines for treatment. Examination revealed that the chest was clear to auscultation and percussion. The oropharynx was clear. There was some clear nasal discharge of the sinuses. Chronic rhinitis and sinusitis, with no evidence of pulmonary disease, was assessed. Competent evidence of a respiratory disorder, characterized as chronic rhinitis and sinusitis, is of record. However, there is no competent evidence of a nexus between a respiratory disorder and an in-service injury or disease. Specifically, the veteran has not submitted medical evidence that tends to show that a chronic respiratory disorder resulted from his period of active service. The nose, sinuses, throat, and lungs were clinically evaluated as normal upon separation examination in December 1969. Upon VA examination in May 1970, the respiratory system was clinically evaluated as normal. The first medical evidence of a respiratory disorder was more than 15 years after the veteran’s discharge from service, when a sinobronchial syndrome was assessed. The record is devoid of medical evidence linking any post-service respiratory problems to an incident of service. Although the veteran contends that his respiratory disorder is related to an incident of service, including Agent Orange exposure, 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. Accordingly, the claim for service connection for a respiratory disorder must be denied. ORDER Service connection for a skin disorder is denied. Service connection for a respiratory disorder is denied. REMAND In his November 1995 substantive appeal, the veteran reported that one of his physicians had told him that his heart disease “came from outside of USA or use of pesticides.” Under 38 U.S.C.A. § 5103(a) (West 1991), if a claimant’s application for benefits under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant of the evidence necessary to complete the application. Under the circumstances of Robinette v. Brown, 8 Vet.App. 69 (1995), the United States Court of Veterans Appeals found that where a veteran made a statement regarding what he had been told by a treating physician, his application for service-connected disability compensation was incomplete under 5103(a). Upon receipt of the hearsay statement from the veteran, the Secretary had an obligation under 5103(a) to advise him that the physician’s statement was needed to “complete” his application. The Board notes that the veteran was not notified of the evidence necessary to complete his application, in particular, medical opinions that his heart disorder is related to an incident of service. In addition, while the issue of entitlement to service connection for “residuals of Agent Orange exposure” is certified on appeal, the nature of the disorder that the veteran claims resulted from Agent Orange exposure is unclear. The Board’s review of veteran’s claims for service connection for a skin disorder and respiratory disorder was undertaken with consideration of the law and regulations pertaining to herbicide exposure. The review of the claim for service connection for a heart disorder will take such law and regulations under consideration as well. The Board is of the opinion that the veteran should be afforded the opportunity to clarify the nature of any additional disorders claimed, in order to complete his application for service connection for residuals of exposure to Agent Orange. In order to ensure that the VA has met its duty under section 5103(a), the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and ask him to clarify the nature of the disorder(s) claimed secondary to exposure to Agent Orange, other than a heart disorder, skin disorder, or respiratory disorder. 2. The RO should advise the veteran that in order to complete his application, he should submit statements from any physicians who told him that his heart disorder was related to herbicide exposure in service. The statements from the physician(s) should comment on the nature of the relationship between the disabilities and service and the approximate date of onset of the disabilities, and should include an explanation of the rationale for the opinions offered. 3. Thereafter, the RO should undertake any other indicated development and readjudicate the veteran’s claims for service connection for a heart disorder and a disorder claimed secondary to exposure to Agent Orange. If the benefits sought on appeal are 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, 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) (1996). - 2 -