Citation NR: 9713863 Decision Date: 04/24/97 Archive Date: 05/01/97 DOCKET NO. 90-19 579A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for fibromyalgia, to include shoulder muscle problems, headaches, neck pain, and cold lower extremities. 2. Entitlement to service connection for bladder cancer. 3. Entitlement to service connection for a skin disorder, to include scabs of the scalp, arms, and back. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD Laura M. Helinski, Associate Counsel INTRODUCTION The veteran had active service from September 1969 to September 1971. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a June 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan, which denied the benefits sought on appeal. The veteran appealed that decision to the BVA for appellate review. The Board notes that in the January 1995 VA Form 646, Statement of Accredited Representation in Appealed Case, the veteran’s representative raised the additional issues of entitlement to service connection for hypercholesterolemia, hypertension, and myocardial infarction. These issues have not been prepared for appellate review, and are referred back to the RO for appropriate development. The Board further notes that the issues for service connection for fibromyalgia and for bladder cancer will be addressed below. The issue of service connection for a skin disorder will be addressed in the REMAND following the ORDER. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he developed fibromyalgia and bladder cancer as a result of his time in service, including exposure to Agent Orange. Therefore, a favorable determination is requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 presented evidence of well grounded claims to establish service connection for fibromyalgia, to include shoulder muscle problems, headaches, neck pain, and cold lower extremities, and for bladder cancer. FINDINGS OF FACT 1. There is no competent medical evidence to establish a nexus between any current fibromyalgia and the veteran’s time in service. 2. There is no competent medical evidence to establish a nexus between any current bladder cancer and the veteran’s time in service. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well grounded claim to establish service connection for fibromyalgia, to include shoulder muscle problems, headaches, neck pain, and cold lower extremities. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran has not submitted evidence of a well grounded claim to establish service connection for bladder cancer. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Applicable Laws and Regulations Service connection may be granted for diseases or injuries incurred or aggravated while in active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996). In reviewing a claim for service connection, the initial question is whether the claim is well grounded. The appellant has “the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1995). To establish that a claim for service connection is well grounded, the veteran must demonstrate the incurrence or aggravation of a disease or injury in service, see Layno v. Brown, 6 Vet.App. 465, 469 (1994); Cartwright v. Derwinski, 2 Vet.App. 24, 25 (1991); the existence of a current disability, see Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992); and a nexus between the in-service injury or disease and the current disability, see Lathan v. Brown, 7 Vet.App. 359, 365 (1995); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Medical evidence is required to prove the existence of a disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995); Layno, 6 Vet.App. at 469. 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 following separation from service. See 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e); see also Traut v. Brown, 6 Vet.App. 495, 497 (1994); Goodsell v. Brown, 5 Vet.App. 36, 43 (1993). The Board notes that in addition to presumptive service connection, the United States Court of Veterans Appeals for the Federal Circuit determined 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. See Combee v. Brown, No. 93-7107 (Fed. Cir. Sept. 1, 1994). Although that case specifically dealt with the list of radiogenic diseases contained in 38 C.F.R. § 3.311b , the Board finds that the Court's holding in Combee must also be applied to cases involving herbicide exposure. In any event, the United States Court of Veterans Appeals (Court) has held that where the issue involves medical causation, competent medical evidence is required to set forth a well-grounded claim, which indicates that the claim is plausible or possible. Grottveit, 5 Vet.App. at 93. A. Fibromyalgia The veteran’s service medical records reveal that in March 1970, he was seen for complaints of headaches. Otherwise, his service medical records are negative for any complaints, treatment, or diagnosis of fibromyalgia, to include shoulder muscle problems, headaches, neck pain, and cold lower extremities. Following separation from service, private medical records from the University of Michigan Hospital, from 1981 to 1983, reveal that the veteran was periodically seen for complaints of pain in his neck and head. In a July 1988 VA neurological evaluation, the veteran was diagnosed with headaches by history, cervical spine syndrome, arthritis by history, and “fibromyrolgia” by history. The veteran complained of pain that would begin in his neck, and then spread to his head. A February 1989 statement from George A. Dean, M.D., indicated that in 1988, he had referred the veteran to Henry Ford Hospital because of pains in his knees, neck, finger, and back, which were sensitive to changes in weather and movement. Dr. Dean diagnosed the veteran with fibromyalgia, but the rheumatologist at the hospital found no rheumatological diagnosis. A March 1989 statement from Charles W. Hackney, an acquaintance of the veteran, indicated that he had noticed the veteran’s complaints of chronic headaches and severe pain in his joints and muscles. In June 1990, the veteran testified before a hearing officer that he first noticed that his shoulder and neck muscles were tightening up when he was in Fort Hood, Texas. This tightening spread to his head, and caused a headache. He indicated that in 1980, he noticed that that same feeling had spread to his legs, which limited his activity such that he had difficulty getting out of bed and walking. He first saw a chiropractor in the late 1970’s for his shoulder problem, but the treatment aggravated rather than helped the condition. In 1983 or 1984, he saw Dr. Dean for his legs, which would often fall asleep, and he was told that he had a muscle problem. The veteran indicated that his whole body was currently symptomatic. The veteran further indicated that Dr. Dean had diagnosed him with fibromyalgia, due to Agent Orange exposure. An August 1990 statement from Darrell W. Sergent, D.C., P.C., revealed that he had originally seen the veteran in 1979 for complaints of neck pain and chronic headaches. Examination revealed decreased neck rotation, and complaints of pain on extreme motion. Dr. Sergent continued to treat the veteran until 1983, and his diagnoses included subluxation complex of multiple cervical vertebrae, myofascitis, paravertebral muscle spasm, and cervicalgia. In August 1990, a VA examination was negative for synovitis of the joints, including the hands, wrists, elbows, shoulders, hips, knees, and ankles. Muscle strength was 5/5, and there was no evidence of inflammatory arthritis. The impression was fibromyalgia. The Board acknowledges the veteran’s contention that he currently has fibromyalgia due to Agent Orange exposure in service. However, fibromyalgia is not recognized as one of the diseases attributable to exposure to herbicides used in the Republic of Vietnam during the Vietnam era. See 61 Fed.Reg. 57,587 (1996); 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e) (1996). Furthermore, regarding a claim for direct service connection for fibromyalgia, to include shoulder muscle problems, headaches, neck pain, and cold lower extremities, the Board finds that the veteran has not presented any competent medical evidence of a nexus between any current disorder and his time in service. As the veteran, his wife, and his acquaintance, appear to have no medical expertise, their assertions that the veteran’s current fibromyalgia, to include headaches, is directly related to his active service, without additional supporting evidence, is not competent evidence. See Robinette, 8 Vet.App. at 75-76 (evidentiary assertions may not be accepted as true when the fact asserted is beyond the competence of the person making the assertion); Grottveit, 5 Vet.App. at 93 (lay assertions of medical [etiology] cannot constitute evidence to render a claim well grounded under section 5107(a)); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992) (laypersons are not competent to offer medical opinions). Consequently, in the absence of competent evidence of medical causation between the claimed disorder and the veteran’s service, the claim is not well-grounded, and must be denied. C. Bladder Cancer The veteran’s service medical records are negative for any complaints, treatment, or diagnosis of a bladder disorder. Following separation from service, in May 1980, the veteran was seen at the Peoples Community Hospital Authority for complaints of right dull flank pain, with complaints of burning. He was diagnosed with right ureteral calculus and transitional cell carcinoma of the urinary bladder; he subsequently had the bladder tumor surgically removed. In August 1983, the veteran was examined and there were some left renal calculi, but no recurrence of a bladder tumor. In June 1990, the veteran testified before a hearing officer that around 1980, he had gone to the hospital for a kidney stone removal, and that the doctors noticed he had bladder cancer. He was treated, by removing a tumor, and he has had no associated problems since. An August 1990 VA examination report revealed that the veteran had no current urologic symptomatology. The Board notes preliminarily, that the veteran has presented no evidence of current residuals of bladder cancer. Without evidence of a current disability, there can be no valid claim. See Brammer, 3 Vet.App. at 225. Furthermore, bladder cancer, including transitional cell carcinoma, is not recognized as one of the diseases attributable to exposure to herbicides used in the Republic of Vietnam during the Vietnam era, and is not entitled to presumptive service connection. See 61 Fed.Reg. 57,587 (1996); 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e) (1996). Even if the veteran had current residuals of bladder cancer, he has presented no competent medical evidence of a nexus between any current bladder cancer residuals and his active service. His own contentions are insufficient to support his claim that his bladder cancer was due to his time in service. See Robinette, 8 Vet.App. at 75-76; Grottveit, 5 Vet.App. at 93; Espiritu, 2 Vet.App. at 495. Consequently, in the absence of competent evidence of a current disorder that is related to his active service, the veteran has not presented a well-grounded claim, and his claim must be denied. II. Conclusion In reaching the above determinations, the Board recognizes that these issues are being disposed of in a manner that differs from that utilized by the RO. The Board has, therefore, considered whether the veteran has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). The Board concludes that the veteran has not been prejudiced; in light of the veteran’s failure to meet his obligation in the adjudication process by not submitting adequate evidence, and because the outcome would be the same whether the claim was treated as not well grounded or adjudicated on the merits. Furthermore, for purposes of a future claim, the difference between evidence required to render the claim well grounded and that required to reopen a previously disallowed claim because of "new and material" evidence appears to be slight. See Edenfield v. Brown, 8 Vet.App. 384, 390 (1995) (en banc). The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for claims for service connection for fibromyalgia, to include shoulder muscle problems, headaches, neck pain, and cold lower extremities, and for bladder cancer. See Robinette, 8 Vet.App. at 77-78. ORDER Well grounded claims having not been submitted to establish service connection for fibromyalgia, to include shoulder muscle problems, headaches, neck pain, and cold lower extremities, and for bladder cancer, those claims are denied. REMAND The veteran contends that he has a skin disorder, to include scabs of the scalp, arms, and back, due to his time in service, including exposure to Agent Orange. The veteran’s service medical records reveal that in October 1970, the veteran was seen for complaints of blemishes. In his May 1971 separation examination report, the veteran was noted to have tinea versicolor. Following separation from service, a November 1985 statement from Earl J. Rudner, M.D., indicated that the veteran had a 15 year history of recurrent pustules on the scalp, back, and chest, which occurred shortly after his return from Vietnam. Dr. Rudner noted that the veteran had multiple excoriations and papules and small pustules on his back and shoulders, with a few lesions on his forehead. It was Dr. Rudner’s impression that the veteran had a chronic recurrent type of acne, and he suggested long term oral Tetracycline therapy, as well as soap and scrub therapy. In a July 1988 VA Agent Orange evaluation report, the veteran was diagnosed as having folliculitis with excoriations. In a March 1989 statement, an acquaintance of the veteran, Charles W. Hackney, related his observations that during service in Vietnam the veteran developed a skin problem on his face, arms, upper body, and scalp, and that this problem continued after service. A February 1989 statement from George A. Dean, M.D. indicated that in November 1985, the veteran was treated by a dermatologist, who diagnosed the veteran with chronic and recurrent types of acne. In June 1990, the veteran testified before a hearing officer that he began noticing skin problems while he was in service in Vietnam, particularly on the tops of his arms, shoulders and head. The veteran stated that when he sought treatment for this condition in service, that he was given medicated soap, which did not help. The veteran further stated that this skin condition continued after service, and that he currently has the same problem. He indicated that the skin condition manifested itself in pimple-like form. The veteran related that in 1989, Dr. Dean had diagnosed him as having chloracne due to his exposure to Agent Orange. The veteran’s wife testified that the veteran did not have a skin condition prior to service, but that she noticed it around October 1970. In a September 1990 VA examination, the veteran was diagnosed with prurigo nodularis. An October 1990 statement from Margaret Green, M.D., revealed that the veteran had been seen for his skin disorder and that he had a diagnosis of porphyria cutanea tarda, attributed to Agent Orange exposure. An October 1993 statement from Michael Harbut, M.D., M.P.H., indicated that the veteran had been admitted to Providence Hospital for treatment of porphyria cutanea tarda, which was not successful. In Dr. Harbut’s opinion, the veteran’s skin condition was due to Agent Orange exposure. In light of the foregoing, the Board finds that further development is necessary for clarification. The Board notes that Drs. Green and Harbut’s statements are not accompanied by any treatment records or other supporting documentation to assist the Board in weighing the credibility of their opinions that the veteran’s current skin condition may be due to Agent Orange exposure. Therefore, to ensure that the VA has fully met its duty to assist the veteran in developing the facts pertinent to his claim, the case is REMANDED to the RO for the following development: 1. The RO should contact Margaret Green, M.D., and Michael Harbut, M.D., M.P.H., and ask that they provide supporting documentation specific to the veteran’s case regarding the bases for their opinions that the veteran’s current skin disorder may be related to Agent Orange exposure in service. The doctors should be requested to provide any relevant treatment records for the veteran. The RO should obtain copies of these records, along with any necessary authorizations, and associate them with the veteran’s claims file. 2. Thereafter, the veteran should be afforded a comprehensive VA examination by a dermatologist. The examiner specifically is requested to offer an opinion as to 1) the nature and extent of any current skin disorder(s); and 2) the relationship, if any, between any current skin disorder(s) and Agent Orange exposure in service. All appropriate tests and studies should be conducted. The examiner is requested to report all clinical findings in detail. The claims file must be made available to the examiner for review prior to and during the examination so that the examiner can review all evidence of record, including the reports of previous examinations performed by VA and private examiners. The complete rationale for each opinion expressed must be provided. 3. When the requested development has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case, and be afforded the appropriate time period to respond before the record is returned to the Board for review. The purpose of this REMAND is to both obtain additional information and to accord the veteran due process of law. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires in connection with his current appeal. No action is required of the veteran until he is notified. WARREN W. RICE, 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. 1996), 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 -