Citation Nr: 9931100 Decision Date: 10/29/99 Archive Date: 11/04/99 DOCKET NO. 97-26 983A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a skin rash, including as secondary to herbicide (Agent Orange) exposure. 2. Entitlement to service connection for numbness of the left arm and hand. 3. Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from August 1968 to August 1970, including a year of service in the Republic of Vietnam during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the veteran's claims for service connection for a skin rash (including as secondary to herbicide or Agent Orange exposure), numbness of the left arm and hand, and a back disorder. In August 1998, this case was remanded to the RO by the Board to provide the veteran the opportunity to have a personal hearing before a hearing officer at the RO as he had previously requested. A personal hearing at the RO was scheduled for November 19, 1998; however, the record reflects that the veteran failed to appear for the hearing. The case has been returned to the Board for further appellate review. The issue of service connection for a skin rash, including as secondary to herbicide exposure, is addressed in the remand part of this decision. FINDINGS OF FACT 1. There is no medical diagnosis of a current disability of numbness of the left arm or hand. 2. There is no competent medical evidence of a nexus between the veteran's current back disorder and service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for numbness of the left arm and hand is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a back condition is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Certain chronic diseases, including arthritis and organic diseases of the nervous system, may be presumed to have been incurred in service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The veteran 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) (West 1991); 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 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to his claim, and the claim must fail. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). To establish that a claim for service connection is well grounded, a veteran must demonstrate "medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury." Savage v. Gober, 10 Vet. App. 488, 493 (1997); see Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Grottveit v. Brown, 5 Vet. App. at 93. The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). The United States Court of Appeals for Veterans' Claims (Court) has held that, alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1998). The chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such a condition. Savage, 10 Vet. App. at 495-97. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. Id. If the chronicity provision does not apply, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. I. Service Connection: Numbness of the Left Arm and Hand The veteran contends that he has numbness in the left arm and hand and requests service connection for this. He does not enter specific contentions to illumine any specifics of his claim; he simply entered an intent to disagree with the RO rating decision denying service connection. Turning to the evidence of record, service medical records are negative for complaints, findings, or diagnosis of numbness of the left arm or hand. At the service separation examination in July 1970 the veteran denied that he had experienced or then had loss of arm or finger, paralysis, or a nervous condition, and the veteran was clinically evaluated as having normal upper extremities. In February 1992, the veteran underwent a lumbar laminotomy and diskectomy. In a letter dated in March 1992, James Powell, M.D., wrote that, during a surgery (date is not indicated), the veteran experienced an episode of shaking of both hands trigemini, as indicated on the EKG, and that he was referring the veteran for a further work-up for this condition. In November 1992, the veteran had good grip strength and normal reflex. In March 1993, he was found upon examination to have no weakness or numbness in his arms, no neurological findings, and normal reflexes and normal grip. Post-service neurological examination in January 1996 was unremarkable. At a VA psychiatric assessment in June 1997, the veteran reported that he experienced panic attacks which, among other things, left him shaky. The history included that the veteran had been seen four to five times for cardiac-like symptoms, but myocardial infarction had been ruled out. There is no evidence of record of a currently diagnosed disability involving numbness of the left arm or hand. While the veteran experienced an episode of shaking of both hands trigemini in 1992, there is no evidence that he currently has a disability of numbness of the left arm or hand. The Court has held that "[i]n order for the veteran to be awarded a rating for service-connected [disability], there must be evidence both of a service-connected disease or injury and a present disability which is attributable to such disease or injury." Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (West 1991). In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As indicated above, the veteran has not been shown to possess the requisite medical expertise necessary to render a competent opinion regarding medical causation. See Jones, 7 Vet. App. at 137; Espiritu, 2 Vet. App. at 494-95. For these reasons, the Board must find that the veteran has not presented a well-grounded claim of entitlement to service connection for numbness of the left arm and hand. 38 U.S.C.A. § 5107(a). II. Service Connection: Back Disorder The veteran contends that he has a back disorder which is related to service. He does not enter specific contentions to illumine any specifics of his claim; he simply entered an intent to disagree with the RO rating decision denying service connection. The evidence of record includes service medical records, which are negative for complaints, findings, or diagnosis of a back disorder. At the service separation examination in July 1970, the veteran denied that he had experienced or then had "back trouble of any kind," and he was clinically evaluated as having a normal spine. The evidence reflects that, in the post-service period in September 1991, notably 21 years after service separation, the veteran injured his back at work. X-rays revealed a normal lumbar spine. In February 1992, he underwent a right L5-S1 diskectomy via L5 laminectomy and partial facetectomy, with continued back pain. In March 1993, the veteran again fell and pulled his back. An examination report dated in March 1993 reflects that the veteran reported he injured himself at work while performing his job as a truck driver; he was trying to load some equipment when he fell backwards, landing directly on his buttock. The examiner indicated that this was more of a cervical and lumbar strain from the direct trauma. A January 1996 discharge summary of hospitalization reflects diagnoses of lumbar radiculopathy involving the right lower extremity (most likely as a result of epidural scarring), with no evidence of recurrent lumbar disc herniation, and post- traumatic cervical sprain. VA outpatient entries in 1997 reflect complaints of chronic back pain. In this veteran's case, there is no competent medical evidence of a nexus between the veteran's current back disorder and service. The medical evidence which is of record tends to relate the veteran's currently diagnosed back disorder to post-service employment-related injuries many years after service. For this reason, the Board must find that the veteran's claim of entitlement to service connection for a back condition is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim must be supported by evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of competent medical evidence to support the veteran's claims for service connection for a skin rash, numbness of the left arm and hand, and a back disorder, these claims must be denied as not well grounded. Since these claim are not well grounded, VA has no further duty to assist the veteran in developing the record to support his claim. See Epps v. Gober, 126 F.3d at 1467-68 (Fed. Cir. 1997) ("there is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim"). The Board is not aware of the existence of additional relevant evidence that could serve to make the veteran's claims well grounded. As such, there is no further duty on the part of the VA under 38 U.S.C.A. § 5103(a) (West 1991) to notify the veteran of the evidence required to complete his application for service connection for the claimed disabilities. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). ORDER The claim of entitlement to service connection for numbness of the left arm and hand is denied. The claim of entitlement to service connection for a back disorder is denied. REMAND Certain chronic diseases, including chloracne, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). VA regulations also provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era and has one of the diseases listed in 38 C.F.R. § 3.309(e) (1999) 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. 38 U.S.C.A. § 3.307(a)(6)(iii) (1999). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e) (1999). See 38 C.F.R. § 3.307(a)(6)(ii) (1999). For instance, service connection for chloracne and other acneform diseases consistent with chloracne is warranted if any such disease becomes manifest to a compensable (10 percent) degree within one year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. Id. 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. 2724, 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 (Fed.Cir. 1994). Although Combee specifically dealt with radiation claims, it also, by analogy, would apply to Agent Orange claims. Thus, in this case, the veteran may establish service connection for a skin rash, including chloracne, with proof of actual direct causation, in this case by either exposure to Agent Orange or other injury or disease in service. The veteran's service medical records, including his July 1970 separation examination, are negative for any history, complaints, or clinical findings of skin disorders. In his claim dated in November 1996, the veteran wrote that he was treated "around" September 1969 for a rash with a boil. The service medical records are negative for such treatment. In a Statement in Support of Claim dated in December 1996, the veteran wrote that: in March (of an unspecified year) he had been treated by a doctor for a rash; several times he had been treated by medics in the field for a rash; he had been treated for a rash at service separation in August 1970; the rash "slowed down" after a period of two years; and he had several scars on his legs and arms. The clinical evidence of record reflects that the veteran was first treated in November 1989 for a skin rash (tinea rash) on his legs, which spread to his ankle and beyond by January and February 1990. In August 1997, the veteran was diagnosed with folliculitis of the chest, shoulders, and back, and tinea involving the plantar aspect of the feet. In October 1997, he was diagnosed with bacterial folliculitis (pore acne) of the lower extremities. An October 1997 list of services indicates the veteran's condition to be "folliculitis (chloracne)." Subsequent treatment records in 1998 reflect diagnoses and treatment for folliculitis, erythrasma, (refractory) tinea pedis and onychomycosis, and nummular dermatitis. In a letter dated in December 1998, Amy Vaughan, M.D., wrote that the veteran had been under her care since August 1997 for a chronic erythematous eruption involving the feet and scattered yellow follicular based papules on the chest and back, and an erythematous, pruritic, pustular eruption involving the chest, shoulders, and back, with some involvement of the thighs. The veteran had reported a history which included that his skin problems had begun in 1969 when he was in service, he had been exposed to Agent Orange during service, and that, since then, he had experienced an erythematous, pruritic, pustular eruption involving the chest, shoulders, and back, with some involvement of the thighs. Dr. Vaughan wrote that Agent Orange had "been known to cause chloracne which is quite resistant form of folliculitis." She also wrote that as of December 1998 the veteran was free from tinea pedis and onychomycosis (jungle rot), and that the veteran's skin conditions, which included chloracne, were well controlled, although "chloracne is a lifelong condition which usually requires constant medical treatment." The question which must be answered in this case is whether the veteran has presented a well-grounded claim for service connection. Dr. Vaughan's December 1998 letter indicated that the veteran was free of tinea pedis and onychomycosis, and that his folliculitis (chloracne) was well controlled. While it is apparent that the veteran currently suffers from a chronic skin disorder, as chloracne was indicated to be a "lifelong condition," there is no competent medical evidence establishing that the veteran developed chloracne or another acneform disease consistent with chloracne, within one year following the last date on which the veteran was exposed to an herbicide agent. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (1999). As to the question of whether there is competent medical evidence of a nexus between a recently diagnosed skin disorder and the veteran's military service, the Board notes that Dr. Vaughan's December 1998 letter recorded the veteran's history of skin symptomatology beginning in 1969 in service, and being continuous since then. Dr. Vaughan did not specifically link the veteran's skin disorders to service, including to the reported exposure to Agent Orange in service and, as noted above, she did not begin to treat the veteran until 1997 or approximately 27 years after service. However, the physician's observation that Agent Orange "had been known to cause chloracne", coupled with the recorded history of Agent Orange exposure during service and the development of chloracne shortly thereafter is sufficient to well ground the veteran's claim. Therefore, in order to ensure that VA has fulfilled its duty to assist the veteran pursuant to 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.303(a) (1999), the Board is of the opinion that further development with respect to the issue of entitlement of service connection for a skin rash, including as secondary to herbicide exposure, is warranted. Accordingly, this case is hereby REMANDED to the RO for the following actions: 1. The RO should contact the veteran and have him identify (names, addresses, and dates) any sources of VA or non-VA treatment for a skin disorder, to include chloracne. The RO should then secure copies of all identified records that are not already on file and associate the evidence with the claims folder. 38 C.F.R. § 3.159 (1999). 2. Following the above, the veteran should be afforded a comprehensive VA dermatological examination to determine the etiology and extent of his variously diagnosed skin disorders, including chloracne. All necessary studies deemed appropriate by the examiner should be performed. The examiner must review the claims file, to include a copy of this REMAND and Dr. Vaughan's December 1998 statement, for review in conjunction with this examination. The examiner must opine whether it is at least as likely as not that (a) the veteran has chloracne and, (b) whether any skin disorder that is diagnosed is causally linked to the veteran's claimed exposure to Agent Orange while on active duty in Vietnam. The complete rational for all opinions expressed must be provided. 3. Following the above, the RO should review the examination report, and assure that all requested information has been provided. If not, the examination report should be returned as inadequate for rating purposes pursuant to 38 C.F.R. § 4.2 (1999). 4. Then, after undertaking any development deemed necessary in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for a skin rash, including as secondary to herbicide exposure. 5. If the determination remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case (SSOC), and be given an opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to obtain additional medical information. The Board does not intimate any opinion, either factual or legal, as to the ultimate disposition warranted in this case. The veteran need take no action until otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). R. F. WILLIAMS Member, Board of Veterans' Appeals