Citation Nr: 9726914 Decision Date: 05/30/97 Archive Date: 09/11/97 DOCKET NO. 95-18 165 DATE MAY 30 1997 On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a kidney disorder, shortness of breath, high blood pressure, a skin disorder and tumors, all claimed as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from November 1963 to November 1965. The RO considered the claims for service connection on the limited basis that these conditions arose as a result of Agent Orange exposure. The RO found that this was the only argument advanced by the veteran and that no other basis was shown in the record. A review of the record shows that with respect to a kidney disorder, shortness of breath and high blood pressure the RO is correct. However, with respect to the veteran's claims for service connection for a skin disorder and tumors, classified as a tumor- like skin rash by the RO, there is an alternate basis for consideration of service connection which was not addressed by the RO. The issues of entitlement to service connection for a skin disorder and tumors will be addressed in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the disorders for which service connection is sought are secondary to Agent Orange exposure while serving in Vietnam, thereby warranting entitlement to grants of service connection. 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's claims of entitlement to service connection for kidney disorder, shortness of breath and high blood pressure as secondary to Agent Orange exposure lack legal merit. FINDING OF FACT The veteran's claims for service connection for a kidney disorder, shortness of breath and high blood pressure as secondary to Agent Orange exposure lack legal merit. CONCLUSION OF LAW The veteran's claims of entitlement to service connection for a kidney disorder, shortness of breath and high blood pressure as secondary to Agent Orange exposure are legally insufficient. 38 U.S.C.A. 1110, 5107(a) (West 1991 & Supp. 1996); 38 C.F.R. 3.309(e), 3.307(a)(6) (1996); Sabonis v. Brown, 6 Vet.App. 426 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Sabonis v. Brown, 6 Vet.App. 426 (1994), the United States Court of Veterans Appeals (Court) held that in cases in which the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected ... even though there is no record of such diseases during service ... chloracne or other acneiform disease consistent with chloracne, Hodgkin's disease, prostate cancer, acute and subacute peripheral neuropathy, multiple myeloma, non- Hodgkin's lymphoma, porphyria cutanea tarda, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), or soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. 3.309(e) (1996). The diseases listed at 3.309(e) 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, porphyria cutanea tarda, and subacute peripheral neuropathy 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). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. 3.307(a)(6). Under the provisions of 38 C.F.R. 3.309(e) (1996), if a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases as set forth in 38 C.F.R. 3.309(e) (1996), 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 rebuttal presumption provisions of 3.307(d) are also satisfied. A kidney disorder, shortness of breath and high blood pressure are not among the conditions listed as presumptive conditions under 38 C.F.R. 3.309(e). Further, the veteran has offered no medical evidence to relate any of these claimed disabilities to service or service exposure to herbicides. The veteran's arguments with respect to such relationships are not probative in that the veteran, as a layman, is not qualified to comment on medical relationships. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Thus, the veteran's claim of entitlement to service connection for these disabilities on the basis that they result from herbicide exposure during service lacks legal merit as the claimed conditions are not included in 38 C.F.R. 3.309, which serves as the legal basis for a presumptive award of service connection. As noted above, presumptive service connection was the only theory of entitlement advanced and a review of the record shows no other evidentiary or legal basis for such grant. The Board's determination in this regard included a consideration of the testimony provided by the veteran and his wife before a hearing officer at the RO in July 1989, as well as service and post service medical and other documentation of record. ORDER Evidence of legally meritorious claims not having been submitted, the claims of entitlement to service connection for a kidney disorder, shortness of breath and high blood pressure as secondary to Agent Orange exposure are denied. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. With respect to the issues of service connection for a skin disorder and tumors, the Board notes that service medical records show that the veteran was treated for tinea pedis while in Vietnam and that tinea pedis has been diagnosed post service. Also, a lipoma was first noted on service discharge examination in November 1965. Postservice medical records show that the veteran has undergone surgeries for numerous lipomas since his discharge from service. In view of the foregoing, additional development of the evidence is necessary. Therefore, pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claim under 38 U.S.C.A. 5107(a); 38 C.F.R. 3.103(a) (1996), the Board is deferring adjudication of these issues pending a remand of the case to the RO for further development as follows: 1. The veteran should be afforded a VA dermatological examination in order to determine the nature, extent of severity, and etiology of any skin disorder(s) which may be present to include tinea pedis and lipomas. The examiner must be requested to provide an opinion as to whether it is at least as likely as not that any skin disorder(s) including tinea pedis and lipomas found on examination are related to service documentation of skin disorders or any incident of service. Any opinions expressed should be supported by a rationale. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior to conduction and completion of the examination. 2. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed in its entirety. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 3. After undertaking any development deemed appropriate in addition to that specified above, the RO should re-adjudicate the issues of entitlement to service connection for a skin disorder and tumors and readjudicate the claims for these disorders as secondary to Agent Orange, and adjudicate this issue on the basis of direct service incurrence. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be provided. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals 38 U.S.C.A. 7102 (West Supp. 1996) 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).