Decision Date: 08/23/95 Archive Date: 08/27/95 DOCKET NO. 90-19 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for emphysema, claimed as a residual of Agent Orange exposure. 2. Entitlement to service connection for sterility, claimed as a residual of Agent Orange exposure. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from July 1967 to May 1969. This appeal arises from a rating decision dated in July 1988 of the Winston-Salem, North Carolina, Regional Office (RO) which denied entitlement to service connection for hypertension and for emphysema. In his substantive appeal, filed in September 1989, the veteran clarified his contentions, alleging that he was exposed to Agent Orange during his Vietnam service, and that this exposure resulted in a lung disorder and sterility. In a March 1989 rating decision, the RO denied service connection for these claims. In September 1990, the Board of Veterans' Appeals (Board) denied the claim for service connection for hypertension, but vacated the RO's denial of the claims for alleged Agent Orange residuals. These issues were remanded to the RO for readjudication, pending the promulgation of new procedural regulations for the adjudication of claims based upon Agent Orange exposure by the Secretary of the Department of Veterans Affairs (VA). Upon promulgation of these new regulations in February 1994, the RO readjudicated the veteran's Agent Orange exposure claims in April 1994, denying entitlement to service connection benefits. The Board again remanded the case for additional evidentiary development in September 1994. The claims folder was returned and docketed at the Board in July 1995, and the case is now ready for appellate review and consideration. In a letter submitted to the RO in June 1995, the veteran stated that he suffered from a heart condition that "probably all goes back to VietNam and Agent Orange." It is not clear from this letter whether the veteran now desires to also claim entitlement to service connection for a heart condition, secondary to Agent Orange exposure. This matter is, therefore, referred to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he suffers from a lung condition, diagnosed as emphysema, which arose as a result of his exposure to Agent Orange. He alleges that during Agent Orange testing, his physician informed him that this diagnosed condition could be caused by defoliant exposure. This physician is also alleged to have told the veteran that he was sterile and would never be able to have children. The veteran asserts that this condition is also attributable to Agent Orange exposure. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 for service connection for emphysema and for sterility, both claimed as residuals of Agent Orange exposure during service, are not well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The presence of a lung disorder or any symptomatology associated therewith is not shown in service. 3. A 1988 VA examination found the presence of distant breath sounds and moist rhonchi which cleared with coughing. The veteran noted a 50 pack-year history of cigarette smoking. Although a chest x-ray was normal, the diagnosis was emphysema and tobacco abuse. 4. No medical evidence has been presented which supports the contention that emphysema is associated with exposure to herbicides during his Vietnam service. 5. At the service induction examination, it was noted that the veteran suffered from a left varicocele. He was treated for groin pain associated with this condition in September 1967. At service separation, no genito-urinary abnormalities were indicated. 6. No medical evidence has been submitted which confirms that the veteran suffers from sterility, and no medical evidence has been presented which supports the contention that he suffers from a procreative disorder which is attributable to herbicide exposure during his Vietnam service. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for emphysema, claimed as a residual of Agent Orange exposure, is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). 2. The veteran's claim for service connection for sterility, claimed as a residual of Agent Orange exposure, is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In order for the Board to consider the appellant's claims, the appellant must submit evidence of that the claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim also requires more than just mere allegations that the veteran's service, or an incident which occurred therein, resulted in illness, injury, or death. The appellant must submit supporting evidence that would justify the belief that the claim is plausible. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992); Grivois v. Brown, 6 Vet.App. 136 (1994). The veteran contends that he suffers from emphysema and sterility as a result of his exposure to Agent Orange and other herbicide agents during his active service in the Republic of Vietnam. A veteran who, during active service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e) (1994), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. Diseases or disorders which have been positively associated with Agent Orange exposure are chloracne or other acneform diseases consistent with chloracne, porphyria cutanea tarda, Hodgkin's disease, non- Hodgkin's lymphoma, respiratory cancers, multiple myeloma, and soft-tissue sarcomas. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1994). Neither emphysema nor reproductive disorders such as sterility are among those diseases which have been positively associated with exposure to Agent Orange. In fact, non-cancerous respiratory disorders and infertility/abnormal sperm parameters are conditions for which the VA has specifically found no association with exposure to herbicide agents. See 59 Fed.Reg. 341, 344-45 (Jan. 4, 1994). The veteran may, nonetheless, prevail in his claims if he can present evidence showing an actual causal connection between his herbicide exposure and his development of emphysema and/or sterility. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). With regard to emphysema, service medical records are completely devoid of any treatment for, or complaints of respiratory problems. Post-service treatment records dated in March 1988 indicate that the veteran's lungs were clear to auscultation and percussion, bilaterally. Emphysema was not, in fact, diagnosed until a VA examination conducted in June 1988, where the examiner noted the presence of increased PA diameter of the chest, with distant breath sounds bilaterally and moist rhonchi bilaterally which cleared with coughing. A 50 pack-year history of cigarette smoking was also noted. A chest x-ray was negative. The examiner's diagnoses were "emphysema" and "tobacco abuse." Although we do not dispute the current existence of a respiratory disorder, the issue in determination is whether this condition can be linked to an incident in service. This determination involves medical causation or diagnosis, such that competent medical evidence must be produced to demonstrate that the veteran's claim is plausible. See Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). The 1988 VA examination made no findings whatsoever concerning any link between the veteran's diagnosed emphysema and Agent Orange exposure. In fact, only the long history of cigarette smoking is noted as a possible cause for the development of this respiratory condition. The veteran has alleged that a VA examiner, during the course of an Agent Orange examination, informed him that emphysema could be related to herbicide exposure. According to a April 1988 VA Agent Orange protocol examination report, however, the veteran did not make any complaints of a respiratory condition which he associated with defoliant exposure in Vietnam, and the examining physician made no notation of any abnormal respiratory findings attributed to such exposure. Thus the only positive evidence presented are the veteran's unsupported contentions. His allegation of a causal connection between his diagnosed emphysema and Agent Orange constitutes lay evidence which is not sufficient to render this claim well-grounded. Lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). As no medical evidence has been presented which provides a causal link between his current respiratory condition and possible Agent Orange exposure in service, the veteran's claim for service connection for emphysema is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991); Grottveit, 5 Vet.App. at 92-93. We likewise find that the claim for service connection for sterility, also claimed as a residual of Agent Orange exposure, is not well-grounded. According to service medical records the veteran suffered from a left varicocele at the time of service induction, and was subsequently treated for groin pain in September 1967, as a result of this condition. Nevertheless, at service separation, no genito-urinary problems or complaints were noted. In April 1988, the veteran reported to the VA Agent Orange examiner that he was "unable to impregnate" his wife. Although hormone and sperm counts were ordered, the results of these tests, contained in a May 1988 VA outpatient record, are indecipherable. Furthermore, we note that there is no diagnosis of sterility or infertility indicated in these treatment records, nor did any of the VA examiners make any specific findings with regard to the current existence of sterility. Thus, in our September 1994 remand, we requested that the veteran undergo a VA genito-urinary examination to confirm his fertility status, and we also requested that he submit information on medical treatment received for his sterility or other genito-urinary complaints since 1988. The veteran made no response whatsoever to the RO's request for medical records. He did submit a letter in June 1995 in which he notes that he recently underwent open heart surgery and a triple cardiac by-pass procedure, and was "not well enough for another examination." Although we acknowledge that the veteran's current health status may impede his appearance for another VA examination, he wholly failed to respond to a request for additional written evidence, including information concerning his medical treatment for his claimed condition. Based upon this failure to respond or to appear for an examination, regulations provide that his claim must be adjudicated based upon the evidence contained in the record. See 38 C.F.R. § 3.655 (1994). No medical evidence has been presented which actually confirms that the veteran currently suffers from sterility, nor do any of the VA treatment or examination reports contained in the record note findings of abnormal sperm parameters or infertility which are linked to the veteran's alleged exposure to Agent Orange in Vietnam. The June 1988 VA examination, performed less than two months after the Agent Orange examination and fertility tests, made no reference whatsoever to the veteran's claims of sterility or any abnormal genito-urinary findings. Where there is no medical evidence of the claimed disorder during service, where there is no medical evidence linking the claimed disorder to service or an in-service event or occurrence, or where the disorder is not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Inasmuch as the veteran has presented only subjective assertions, with no medical evidence confirming the current presence of sterility, and no medical evidence demonstrating any link between this claimed condition and Agent Orange exposure in service, his claim for service-connection is not well- grounded. 38 U.S.C.A. § 5107(a) (West 1991). In two recent decisions, Grottveit, supra., and Grivois v. Brown, 6 Vet.App. 136 (1994), the United States Court of Veterans Appeals (Court) has held that claims for service connection denied on the merits by the Board and, preceding the Board's decisions, by the Regional Office, were not well-grounded, and that "the [Board] and the Regional Office erred in not so deciding the claim." Grottveit, 5 Vet.App. at 92. The governing law, 38 U.S.C.A. § 5107(a) (West 1991), [R]eflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which -- as well- grounded -- require adjudication. . . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones. Grivois, 6 Vet.App. at 139. The Court expressed its concern that a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he or she seek to reopen the claim because new and material evidence would be required to reopen. The Court deemed it appropriate, where the Board denied on the merits a claim that was not well- grounded, to "recognize the nullity of the prior decisions and allow appellant to begin, if he can, on a clean slate." Grottveit, 5 Vet.App. at 93; Grivois, 6 Vet.App. at 140. In both cases, the Court vacated the Board's decision and remanded with instructions to vacate the decisions of the RO. Id.; Grivois, 6 Vet.App. at 141. In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994), not attach to the rating decisions of July 15, 1988, March 8, 1989, and April 21, 1994, as regards these claims. ORDER Well-grounded claims for service connection for emphysema and for sterility, claimed as residuals of Agent Orange exposure, having not been submitted, these claims are dismissed, and the rating decisions of July 15, 1988, March 8, 1989, and April 21, 1994, are vacated insofar as service connection for these disabilities was denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), 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 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -