Citation Nr: 9808824 Decision Date: 03/24/98 Archive Date: 04/14/98 DOCKET NO. 97-03 658A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a stomach disorder due to Agent Orange exposure. 3. Entitlement to service connection for a skin disorder, to include urticaria, due to Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Lemoine, Associate Counsel INTRODUCTION The veteran had verified active military service, according to his DD Form 214, for a two-year period, beginning on an unspecified date and ending in May 1969. The Board of Veterans' Appeals (Board) received this case on appeal from an October 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied the veteran's claims. The Board notes that a February 1996 rating decision also denied the veteran’s claims seeking nonservice-connected pension benefits, and seeking service connection for tingling and numbness of the hands and feet, and a May 1996 rating decision denied the veteran’s claims seeking increased (compensable) evaluations for his service-connected impaired hearing and bilateral perforated eardrums. However, none of the issues denied by those rating decisions has been developed for appellate review and, accordingly, they are not before the Board at this time. The Board also notes that, on April 21, 1997, the Vice Chairman of the Board granted the Board’s own motion to advance this case on the docket under the authority of 38 C.F.R. § 20.900(c), in order to remedy a previous administrative error that resulted in a delay in the veteran's appeal being docketed. It was determined that an advance of the veteran's appeal on the docket would restore it, to the extent practicable, to the place it would have been had the administrative error not occurred. (See the Remand portion of this document for an explanation of further action required before the Board can adjudicate the issue of entitlement to service connection for PTSD.) CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that service connection is warranted for a stomach disorder and a skin disorder, to include urticaria, due to Agent Orange exposure. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered the pertinent 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 met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that he has presented well-grounded claims of service connection for a stomach disorder and a skin disorder, to include urticaria, due to Agent Orange exposure. FINDINGS OF FACT 1. The veteran had active service in Vietnam during the Vietnam era. 2. The veteran has not been diagnosed with any current disability recognized by VA as etiologically related to exposure to herbicide agents used in Vietnam. 3. Although there is medical evidence of record indicating that the veteran was diagnosed with allergic rhinitis and urticaria, there is no medical evidence that these disorders are related to exposure to herbicide agents used in Vietnam. 4. No medical evidence has been submitted to show that the veteran is suffering from either a stomach disorder or a skin disorder, to include urticaria, due to Agent Orange exposure in service. 5. The veteran has not submitted competent evidence sufficient to justify a belief by a fair and impartial individual that he has presented plausible claims of service connection for a stomach disorder or a skin disorder, to include urticaria, due to Agent Orange exposure. CONCLUSION OF LAW The veteran has not submitted well-grounded claims of service connection for a stomach disorder or a skin disorder, to include urticaria, due to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107, 7104 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.303, 3.307(a), 3.309(a), (e) (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question regarding the veteran's claims is whether he has presented well-grounded claims. A well- grounded claim is one which is plausible. If he has not, the claims must fail and there is no further duty to assist in the development of the claims. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). This requirement has recently been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). That decision upheld the earlier decision of the United States Court of Veterans Appeals which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet.App. 341 (1996). A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Also, in order for a claim to be well grounded, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus (that is, a link or connection) between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Tidwell v. West, ___ Vet. App. ___, No. 96- 1778, slip op. at 3-4 (Feb. 13, 1998). 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 or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet.App. 19, 21 (1993). As explained below, the Board finds that the veteran has not presented well-grounded claims of service connection for a stomach disorder or a skin disorder, to include urticaria, due to Agent Orange exposure. The veteran's DD Form 214 indicates that he served in Vietnam during the Vietnam era. A careful review of the veteran's service medical records also reveals that they are entirely negative for any evidence pertaining to his claimed residuals of Agent Orange exposure, to include a stomach disorder and a skin disorder. All pertinent findings were normal on separation examination in March 1969. In June 1969, the veteran submitted a claim seeking service connection for perforated ear drums. He did not claim any residuals of Agent Orange exposure at that time. The veteran underwent VA examinations in July 1969 and May 1986, both of which were also entirely negative for any complaints or findings pertaining to Agent Orange exposure. Received in January 1986 were private medical records from the Stevens Clinic Hospital, which were negative for any pertinent complaints or treatment. In June 1995, the veteran initially claimed entitlement to service connection for residuals of Agent Orange exposure, to include a stomach disorder and a skin disorder. The majority of evidence received following the veteran’s claim pertained to his claim seeking service connection for PTSD. However, also received were private medical records from P. C. Corro, M.D., which indicated allergy treatments were administered to the veteran in 1986 and 1987. Further private medical records received from R. L. Garcia, M.D., reported that he first treated the veteran for allergic rhinitis in January 1987, after he had been referred for treatment from Dr. Corro. Dr. Garcia noted that the veteran had been treated with regular allergy injections, the last one being administered in February 1995. The veteran underwent a VA examination of the skin in December 1995, during which he reported a history of bouts with an itchy rash since 1970. He also reported that he had taken allergy shots for 7 years until 1994, and the eruptions were better while he was receiving shots. On examination, the skin was clear and there were no objective findings. The diagnosis was that of urticaria, recurrent, etiology undetermined, no relationship to Agent Orange. 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. In addition, certain diseases, when manifest to a degree of 10 percent or more within one year after the veteran's military service ended, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). 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 this 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. §§ 1101, 1112, 1113, 1116; 38 C.F.R. § 3.307(a). 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 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to a 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)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 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 acute 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)(ii). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed.Reg. 341-346 (1994). See also 61 Fed.Reg. 57,586-57,589 (1996). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veteran’s 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. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet.App. 40 (1996). However, where the issue involves a question of medical diagnosis or causation as presented here, medical evidence which indicates that the claim is plausible is required to set forth a well- grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). But see Tidwell v. West, supra, slip op. at 3, holding that “without the benefit of presumptive service connection [in an Agent Orange case], the appellant is obligated to submit an otherwise well-grounded claim.” Upon careful review of the evidentiary record, the Board finds it is clear that the veteran served in Vietnam and is entitled to a presumption of herbicide exposure. The Board further notes that the medical record indicates the veteran has been diagnosed with allergic rhinitis and urticaria. However, these diagnoses are not diseases listed at 38 C.F.R. § 3.309(e). Accordingly, under the law, the veteran is not entitled to a presumption that these disorders are etiologically related to exposure to herbicide agents used in Vietnam. Having carefully reviewed the entire record, the Board finds that there is no medical evidence of record suggesting a connection between the veteran's presumed Agent Orange exposure and his diagnosed allergic rhinitis and urticaria. In fact, the Board notes that, not only is there no competent evidence in support of the veteran's claim but, to the contrary, the December 1995 VA examination concluded that the veteran’s urticaria was not related to Agent Orange exposure. There is simply no medical evidence of record supporting the contention that the veteran has either a stomach disorder or a skin disorder, to include urticaria, due to Agent Orange exposure. The Board has considered the contentions of the veteran and, inasmuch as the veteran is offering his own medical opinion and diagnoses, notes that the record does not indicate that the veteran has any professional medical expertise. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The veteran's assertions of medical causation alone are not probative because lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well grounded. See Grottveit, at 93. As noted previously, the judicial precedent in Caluza requires, for a claim to be well grounded, competent evidence of a current disability (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). The veteran has provided competent medical evidence that he was diagnosed with allergic rhinitis and urticaria. The veteran is also entitled to a presumption of exposure to herbicides in Vietnam. However, there is no medical evidence that the veteran's diagnosed disorders are etiologically related to exposure to Agent Orange in service. As such evidence has not been presented here, the veteran has not submitted well- grounded claims of service connection for a stomach disorder or a skin disorder, to include urticaria, due to Agent Orange exposure. Finally, the Board is satisfied that the RO took all reasonable steps to properly develop the veteran's claim. Under the circumstances of this case, the appellant's application is not incomplete, and the VA has not been put on notice that other relevant evidence exists, or could be obtained, which, if true, would make the claim “plausible.” Robinette v. Brown, 8 Vet.App. 69, 80 (1995); See also Epps v. Brown, 9 Vet.App. 341 (1996), aff’d sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Moreover, VA is not required to notify the veteran of particular evidence needed to make his application complete if the Department has not reasonably had notice of the existence of such evidence. McKnight v. Gober, ___ F.3d ___, No. 97-7062 (Fed. Cir. Dec. 16, 1997). Consequently, a remand for additional evidentiary development is not warranted under the facts of this case. ORDER Service connection for a stomach disorder and a skin disorder, to include urticaria, claimed as due to exposure to Agent Orange, is denied, since well-grounded claims have not been presented. REMAND With regard to the veteran's claim of service connection for PTSD, service connection requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and service. If the claimed in-service stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded a combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f) (1997). Where, however, VA determines that the veteran did not engage in combat, the veteran’s lay testimony, by itself, will not be sufficient to establish the alleged stressor. Instead, the record must contain service records or other independent credible evidence to corroborate the veteran’s testimony as to the alleged stressor. Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996). Those service records which are available must support and not contradict the veteran’s lay testimony concerning the non-combat stressors. Doran v. Brown, 6 Vet.App. 283, 289 (1994). Also, in Cohen v. Brown, 10 Vet.App. 128 (1997), the United States Court of Veterans Appeals cited the three elements required by section 3.304(f) to warrant a grant of service connection for PTSD: (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. Cohen, at 138. The Court further held that, if the claimed stressor is not combat related, a veteran's lay testimony regarding in- service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by "credible supporting evidence." Id. at 142. On review of the evidentiary record, the Board notes that private medical records, received from the Southern Highlands Community Mental Health Center, indicate that the veteran was treated at that facility from October 1990 to June 1995 and was diagnosed with PTSD. The record also indicates that the veteran has been in receipt of disability benefits from the Social Security Administration since September 1991, based primarily on the findings of a February 1991 psychological evaluation performed by the West Virginia Disability Determination Service, which indicated a diagnosis of PTSD. On VA examination for PTSD in July 1996, the veteran’s Axis I diagnosis was that of a major affective disorder, recurrent, moderate to severe in nature, with psychotic features; and also an adjustment disorder with anxious and depressed mood, secondary to physical illness and situational factors. Within the veteran’s notice of disagreement, received in November 1996, he reported that he was receiving ongoing treatment for his PTSD from the VA Medical Center, and he requested that these records be obtained by the RO. It does not appear to the Board that the RO attempted to obtain these treatment records. In addition to the above, the Board notes that the veteran’s DD Form 214 is of record and indicates that the veteran was separated from service in May 1969. It is also indicated that the veteran had 9 months of overseas service and that he was awarded a Vietnam Service Medal, Vietnam Campaign Medal, and also a Combat Infantry Badge. However, the precise dates of the veteran’s service in Vietnam and his units of assignment within Vietnam have not been determined, as the veteran’s service personnel records, to include his DA Form 20, are not of record. In order to assess the credibility of the veteran’s claimed stressors this information should also be obtained by the RO. Given the different diagnoses of record and given the contentions of additional pertinent medical records to be obtained, a remand is necessary in this case. Under these circumstances, it is appropriate that the veteran be scheduled for another VA psychiatric examination to determine his current diagnosis. It is also important that the examiner address the etiological relationship of any diagnosed neuropsychiatric disorder to the veteran's service. VA has a duty to assist a veteran in developing facts pertinent to a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1996). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). Accordingly, further appellate consideration will be deferred and the case is REMANDED to the RO for the following actions: 1. The RO should request the veteran's service personnel records, to include his DA Form 20, from the National Personnel Records Center (NPRC). These records should be reviewed to ascertain his dates of service, his dates of service in Vietnam, where he was assigned in Vietnam, what type of work he performed, and what types of awards or commendations he received. 2. After reviewing the service personnel records, the RO should make a determination on the question of whether the veteran engaged in combat with the enemy. If the answer is in the affirmative and his alleged stressors are related to such combat, the veteran's lay testimony regarding such claimed stressors must be accepted as conclusive as to their occurrence and the further development for corroborative evidence, requested below, need not be undertaken. Adjudication of the claim should then be undertaken in accordance with the provisions of 38 U.S.C.A. § 1154(b). 3. In the event it is determined that the veteran did not participate in combat with the enemy, or that the alleged stressors were not related thereto, the RO should then provide the veteran with an opportunity to provide, in as detailed a fashion as possible, the circumstances surrounding the claimed stressor incident(s) which reportedly occurred in Vietnam. He should specify, to the extent possible, the location and date of each event identified, the unit to which he was assigned at the time, the names of other individuals participating, if known, in addition to any other identifying information which may be relevant. The veteran should be informed that the information is necessary to obtain supportive evidence and that failure to respond may result in an adverse determination. He must also be informed that his response must be as specific as possible in order to facilitate a search for verifying information. The veteran's response should be associated with the claims folder. The RO should then review the file and prepare a summary of the veteran’s claimed stressors to include a copy of a current stressor statement, if submitted. This information should be sent to the U.S. Armed Services Center for Research of Unit Records, 7798 Cissna Road, Springfield, Virginia 22150 for verification of the veteran’s putative stressors. 4. The RO should contact the veteran and request that he provide the names and addresses of all medical care providers who treated him for his claimed disorder. The RO should request the veteran furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. The RO should attempt to obtain any such private treatment records, not already on file, which may exist and incorporate them into the claims folder. 5. The RO should take the appropriate steps to secure copies of all of the veteran’s VA treatment records and associate them with the claims folder. 6. The RO should then schedule the veteran for a VA psychiatric examination in order to determine his current neuropsychiatric diagnosis, if any. Any necessary special studies or tests, to include psychological testing should be accomplished. In determining whether the veteran experienced an inservice stressor that may be related to any diagnosed disorder, the examiner is hereby notified that only the verified history detailed in the reports provided by USASCRUR and/or the RO may be relied upon. Based on his/her review of the case, the examiner should express an opinion, if possible, as to the medical probability that any currently demonstrated disorder is etiologically related to the veteran’s service. It is critical that the claims folder, along with any additional evidence requested above, be provided to the examiner for review. The examination report should reflect review of pertinent material in the claims folder and include the complete rationale for all opinions expressed. 7. After the development requested above has been completed, the RO should again review the entire record. If the determination remains unfavorable to the veteran, the RO should furnish him and his representative with a supplemental statement of the case, in accordance with 38 U.S.C.A. § 7105 (West 1991). Thereafter, the veteran and his representative should be given the opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order, following appropriate appellate procedure. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purpose of this REMAND is to further develop the record. No action is required by the veteran until he receives further notice. 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. 1997) (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. ANDREW J. MULLEN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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 -