Citation NR: 9700931 Decision Date: 01/14/97 Archive Date: 02/03/97 DOCKET NO. 94-49 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of Agent Orange exposure, including a nervous condition, a skin condition (to include photodermatitis, neurodermatitis, and chloracne), and weakness of extremities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran served on active duty from October 1965 to July 1967. The appeal arises from the April 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, denying service connection for a nervous condition, a skin condition (including chronic photodermatitis, neurodermatitis, and chloracne) and weakness of the limbs, all as secondary to exposure to herbicides in service. The Board notes that the RO previously denied service connection for a nervous condition on a direct basis in a December 1991 rating decision, which denial became final for lack of timely appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in effect, that as a result of his exposure to Agent Orange in service, he has developed a nervous condition that has interfered with his normal daily functioning, including work and married life. He contends, in effect, that he developed skin conditions, including photodermatitis, neurodermatitis, and chloracne, all as secondary to exposure to Agent Orange in service. He further contends, in effect, that he has chronic weakness in his extremities as a result of exposure to Agent Orange in service. Accordingly, he contends that he is entitled to service connection for a nervous condition, a skin condition, and weakness in the extremities, all as secondary to exposure to Agent Orange. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 claim is not well grounded and must be denied. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. No medical evidence has been presented to show that the veteran currently or at any time in the past suffered from chloracne. 3. Photodermatitis, neurodermatitis, a nervous condition, and weakness of the extremities are not conditions subject to presumptive service connection due to exposure to herbicides during service. 4. There is no competent (medical) evidence tending to show a link between the claimed conditions and exposure to Agent Orange in service. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim for service connection for residuals of Agent Orange exposure, including a nervous condition, a skin condition (to include photodermatitis, neurodermatitis, and chloracne), and weakness of extremities. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(a) (West 1991); 38 C.F.R. §§ 3.307(a), 3.309(a), (e) (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The Board has reviewed and considered all pertinent evidence. The veteran served on active duty from October 1965 to July 1967, with approximately one year of overseas duty in Vietnam from August 1966 to August 1967. Service medical records show no complaints, findings or treatment for chloracne. Post service, the veteran underwent a VA brain scan examination in August 1983, in response to his complaints of nervousness and uncontrollable body jerks. In July 1983 the veteran was afforded a VA preliminary psychiatric consultation for his complaints of nervousness. As the veteran advised in several statements of record, he refused further psychiatric evaluation by VA. The record contains a private psychiatric evaluation of the veteran, dated in June 1986, from the Holston Mental Health Center, Scott County, Virginia. The record contains two private psychiatric evaluations of the veteran from P. D. Nelson, M.D., a private psychiatrist, dated in July 1984 and June 1986. The July 1984 report contains the statement, The patient has many indications of a chronic brain syndrome. The etiology undetermined. It could be Agent Orange, could be alcohol, and it could be many other things. The record contains a Minnesota Multiphasic Personality Inventory, dated in July 1984, as prepared by J. N. Butcher, Ph.D., and reviewed by P. D. Nelson. The record contains a letter from P. D. Nelson, dated in March 1987, describing treatments for the veteran’s mental conditions and his tremor. The record contains a second letter from P. D. Nelson, dated in August 1986, directed to the medical director of the Railroad Retirement Board, describing the veteran’s condition and treatment. The record contains an outpatient treatment record from Appalachian Regional Healthcare, with treatment notes dated in August 1990 and June 1991. The August 1990 note records the veteran’s complaint of a rash on the left forearm, which the examiner assessed as tinea corporis. The June 1991 note records the veteran’s complaint of a rash on the left arm. The examiner assessed the condition as chronic photodermatitis/photoaging of the forearms, with neurodermatitis of the anterior portion of the wrists and hands and pyoderma of the dorsal wrists. In a statement received into the record in January 1994, the veteran said that his daughter had the same nervous condition as he had. In another statement he said that he was a good athlete prior to service and a nervous wreck after service. He further said that a C-130 had sprayed chemicals directly overhead while he was in Vietnam, and that he had had, but lost, a photograph of the spraying. He further said that he had two older brothers who did not have his nervous condition or his skin condition. The veteran submitted two photographs of a left arm showing a discoloring skin condition, received into the record in November 1995. In an accompanying statement, the veteran advised that the featured skin condition was milder at the time of the photographs than it normally was. In his November 1994 Substantive Appeal, the veteran stated that he had been told by a physician that the knots that were part of his skin condition could be due to chemical exposure, but that the physician refused to make that statement in writing. He also stated that he worked in service many times unloading orange-striped barrels from ships in Cam Rahn Bay. Analysis The threshold question to be answered is whether the veteran's claim is well grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). For service connection to be granted, cognizable evidence must establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre- existing service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). In order for a claim to be well grounded, there must be competent evidence of current disability (a 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.) Caluza v. Brown, 7 Vet.App. 498 (1995). With respect to Agent Orange, the Board notes that 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) (1995), shall be presumed to have been exposed during such service to a 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) (1995). Furthermore, in August 1996, the Secretary of Veterans Affairs determined that presumptive service connection is not warranted for conditions for which the Secretary has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442 (August 8, 1996). 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 beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19, 21 (1993). In the present case, the veteran's evidentiary assertions as to a link between Agent Orange exposure and his currently claimed conditions, including a nervous condition, a skin condition (to include photodermatitis, neurodermatitis, and chloracne), and weakness of extremities, are beyond his competence. Lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The Board notes that where the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). The record contains no medical diagnosis or findings of a chloracne condition, and the veteran’s skin condition has not been otherwise identified as any condition for which the Secretary has recognized an association to exposure to herbicides in Vietnam. The veteran’s other conditions claimed as secondary to exposure to Agent Orange in Vietnam have also not been recognized by the Secretary as conditions for which an association to exposure to Agent Orange has been found. Nor is there any medical evidence of record otherwise tending to show such an association. Dr. Nelson’s statement that the cause of the veteran’s organic nervous condition “could be Agent Orange, ...could be alcohol, ...could be many other things” is simply too speculative to support a well- grounded claim. Accordingly, the Board concludes that the veteran has not submitted a well-grounded claim for service connection for residuals of Agent Orange exposure, including a nervous condition, a skin condition (to include photodermatitis, neurodermatitis, and chloracne), and weakness of extremities. There is no prejudice to the appellant in denying the claim as not well grounded even though the RO decision was on the merits, because the “quality of evidence he would need to well ground his claim or to reopen it would seem to be...nearly the same...” Edenfield v. Brown, 8 Vet.App. 384 (1995)(en banc). Compare Bernard v. Brown, 4 Vet.App. 384 (1993). The appellant may file a claim supported by medical evidence attributing some or all of these conditions to Agent Orange exposure. (CONTINUED ON NEXT PAGE) ORDER The claim for service connection for residuals of Agent Orange exposure, including a nervous condition, a skin condition (to include photodermatitis, neurodermatitis, and chloracne), and weakness of extremities, is denied as not well grounded. J. E. DAY 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 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 -