Citation NR: 9714208 Decision Date: 04/24/97 Archive Date: 05/01/97 DOCKET NO. 95-07 803 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for claimed chloracne as secondary to exposure to herbicides. 2. Entitlement to service connection for kidney stones. 3. Entitlement to service connection for claimed numbness of the toes and fingers. 4. Entitlement to service connection for a claimed rash on the feet. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Roberto D. DiBella, Associate Counsel INTRODUCTION The veteran had active duty from June 1966 to June 1969. This appeal arises from a July 1994 decision by the RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has chloracne which is a residual of exposure to herbicides during his Vietnam service. He also contends that has kidney stones, numbness of the toes and fingers and a rash on his feet which all had their onset in service. DECISION OF THE BOARD The Board of Veterans' Appeals (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 evidence is insufficient to justify a belief by a fair and impartial individual that the veteran has presented well-grounded claims of service connection for chloracne as secondary to exposure to herbicides, kidney stones, numbness of the toes and fingers and for a rash on the feet FINDINGS OF FACT 1. The veteran had active service in Vietnam during the Vietnam era. 2. The veteran has not presented any medical evidence that he is currently suffering from the chloracne or any other condition recognized by the VA as causally related to the exposure to Agent Orange used in Vietnam. 3. Complaints or treatment for chloracne or any other skin condition were not noted in service; however, he was shown to have a rash in his face, hands and feet shortly after service. 4. No competent evidence has been submitted to show that the veteran currently suffers from any skin condition due to Agent Orange exposure or other disease or injury which was incurred in or aggravated by service. 5. The first recorded findings of a kidney condition were noted approximately 22 years after service in March 1991 when he was diagnosed with left ureteral calculus with secondary left hydronephrosis and urinary tract infection. 6. No competent evidence has been submitted to show that the recently diagnosed kidney disability is due to disease or injury which was incurred in or aggravated by service. 7. The veteran is shown to have been treated for a lacerated left thumb and left wrist injury while in service; however, at the time of his discharge from service, no complications were noted from this treatment and no sequelae were found. 8. The veteran has not presented any competent evidence to show that he currently suffers from numbness of the toes and fingers due to disease or injury which was incurred in or aggravated by service. CONCLUSIONS OF LAW 1. A well-grounded claim of service connection for chloracne has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (1996). 2. A well-grounded claim of service connection for kidney stones has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (1996). 3. A well-grounded claim of service connection for numbness in the toes and fingers has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (1996). 4. A well-grounded claim of service connection for a rash on the feet has not been presented. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Historical The service medical records do not show any treatment for chloracne or any other skin condition, or any kidney problems. The service medical records do show that on July 27, 1966, the veteran fell and injured his left wrist while attempting to break his fall; however, x-ray studies showed no fracture; on November 25, 1966, he had lacerated his left thumb, but no fracture was noted; and on May 27, 1967, he had complained of intermittent pain in his left wrist, but the physical examination revealed no dislocation or edema, range of motion was good, and grip was excellent. The diagnosis was that of trauma, old injury to the left wrist. The separation examination, conducted on May 2, 1969, noted no pertinent complaints from the veteran, no significant abnormalities, and the physical examination was within normal limits. On June 12, 1969, the veteran signed a statement which acknowledged that there had been no change in his medical condition since the May 1969 examination. A private hospital report shows that the veteran was hospitalized from March 16, 1991 to April 3, 1991 for a cystoscopy and retrograde pyelogram which had revealed a stone in the proximal ureteral, UP junction with secondary hydronephrosis. The discharge diagnosis was that of left ureteral calculus with secondary left hydronephrosis and urinary tract infection. A cystoscopy was again performed on the veteran at a VA medical center (VAMC) for a left renal calculus on April 19, 1991. VA outpatient records from August 1993 to October 1994 also show treatment for kidney stones, to include a hospitalization from August 19, 1993 to August 29, 1993 when he was diagnosed with nephrolithiasis, pyelonephritis, hypertension and peptic ulcer disease. These records do not show any complaints or treatment for chloracne or any other skin condition, or for numbness of the toes and fingers. In February 1994, the veteran’s mother and brother submitted statements. The veteran’s mother reported that after her son had been discharged from the Army in June 1969 and had returned home, she had witnessed a severe rash on his arms, legs, and his face. His brother reported that he had lived with the veteran from 1968 to 1973. During this time, he reported seeing water like blisters that would burst, leaving raw sores that were extremely painfully, and layers of skin that would peel away leaving bright red and very sensitive areas on his hands, feet, and face. He further reported that the veteran’s feet were continually affected as he had complained that even wearing shoes was painful. Finally, he related that he was sure that none of these conditions were there before the veteran had gone into service. In his VA 21-526, received in February 1994, the veteran reported receiving treatment at Uniontown hospital for kidney stones. In his Notice of Disagreement, received in September 1994, he reported he had received treatment at the Oakland VAMC in Pittsburgh, Pennsylvania in August 1993. These records have been associated with the claims folder. II. Analysis A. Agent Orange If a veteran was exposed to Agent Orange in service, the following diseases shall be service-connected, even though there is no record of such disease during service: Chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; multiple myeloma; Non-Hodgkin’s lymphoma; acute and subacute peripheral neuropathy; Porphyria cutanea tarda; respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1996). The above provisions were recently amended, in November 25, 1996, to add additional diseases pursuant to several scientific studies; therefore, the regulations are current in regard to diseases related to Agent Orange exposure. Because the veteran had service in Vietnam, exposure to Agent Orange must be presumed. 38 C.F.R. § 3.307(a)(6) (1995). However, he has not submitted any evidence which shows that he currently has chloracne or any other of the presumptive diseases for which service connection can be granted based on such exposure to Agent Orange. While the veteran has not established service connection for a skin condition presumptively, as described hereinbelow, he can establish service connection if he can show that he currently has a skin condition (to include the claimed rash on the feet) which was incurred in or aggravated by service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). B. Chronic Disease In general, service connection may be granted for a disability shown to be due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1995). However, before the veteran's claim can be addressed, he must first present evidence sufficient to justify a belief by a fair and impartial individual that the service connection claim is well- grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1995). The United States Court of Veterans Appeals (Court) has held that the veteran must submit evidence of a well- grounded claim, one that is plausible or meritorious. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the veteran has not met that burden, there is no further duty on the part of the VA to assist the veteran with the development of that claim. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1995). See also Boeck v. Brown, 6 Vet.App. 14, 17 (1993) and Grivois v. Brown, 6 Vet.App 136, 140 (1994). When, as in this case, the issue involves a medical question of diagnosis or causation, competent, medical evidence is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Statements and testimony from lay witnesses or the veteran in this regard are not sufficient to establish a plausible claim as they are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Moreover, the evidence must show that the veteran currently has a disability stemming from service. Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Therefore, in order to have a well-grounded claim, the veteran must submit competent medical evidence of a current medical disability; competent lay or medical evidence of an incurrence or aggravation of a disease or injury in service; and, competent medical evidence of a nexus between an inservice injury or disease and a current disability. Caluza v. Brown, 7 Vet.App. 498, 506 (1995). The crucial determination before the Board in regards to this issue is whether the veteran currently suffers from a skin condition due to disease or injury which was incurred in or aggravated by service. The service medical records do not show any treatment for a rash on the feet or any other skin condition. Most importantly, the veteran has not submitted any medical evidence which shows that he currently suffers from a skin disability. The recently submitted medical evidence of record show treatment primarily for a kidney condition; there is nothing that can be gleaned from these records which suggest that the veteran is currently suffering from a skin disability. Therefore, the veteran has submitted no competent evidence to support his lay assertions that he currently suffers from a rash on his feet or any other skin disability due to a disease or injury which was incurred in or aggravated by service. The Board would note that the veteran’s mother and brother reported having witnessed a rash, blisters, and peeling skin on the veteran’s hands, feet, and face shortly after service. These statements do not address whether he currently has any of these symptoms. In addition, while the veteran’s mother and brother are competent to testify as what they had observed, they are not, as lay persons, competent to offer a medical opinion as to the cause of his claimed skin condition. Epps v. Brown, 9 Vet.App. 341, 344 (1996); Espiritu, supra; See also Franzen v. Brown, 9 Vet.App. 235 (1996). (The only evidence of in the record as to the cause of the veteran’s disability are his assertions and hearing testimony. Since his lay testimony is not competent evidence of medical causation, the veteran has not presented a well- grounded claim.) Finally, in its Informal Hearing Presentation, the veteran’s representative argues that since the veteran was exposed to Agent Orange, he should be afforded an Agent Orange examination to determine if he has manifested diseases associated with exposure to herbicides. However, until a the veteran has submitted a well-grounded claim, the VA is under no duty to establish the elements of his claim. Robinette v. Brown, 8 Vet.App. 69, 76 (1995) (i.e. conduct a thorough and comprehensive medical examination to establish a causal nexus between an inservice injury and a current disability). Therefore, since the burden is on the veteran and not the VA to establish a well-grounded claim, a VA examination is not warranted at this time. Absent competent medical evidence which would support his lay assertions, the Board finds that a well-grounded claim for service connection for chloracne and for a rash on the feet has not been presented in this case. C. Numbness of the toes and fingers The crucial determination before the Board is whether the veteran has submitted evidence sufficient to demonstrate that he currently suffers from numbness of the toes and feet due to a disease or injury which was incurred in or aggravated by service. The service medical records do show that the veteran had injured his left wrist and lacerated his left thumb during service; he had had one subsequent complaint pertaining to his left wrist. However, no pertinent neurological findings were noted referable to these injuries. Furthermore, the separation examination noted no pertinent complaints or significant abnormalities, and the physical examination was within normal limits. Finally, prior to his separation from service, the veteran signed a statement which acknowledged that there had been no change in his medical condition since his separation examination. In addition, the objective findings of record do not support the veteran’s contentions. In fact, he has not submitted any medical evidence which shows that he currently suffers from numbness in the toes and fingers or any other neurological condition of the toes or fingers. The recently submitted medical evidence of record show treatment primarily for a kidney condition; there is nothing that can be gleaned from these records which suggests that the veteran is suffering from any neurologic pathology of the toes and fingers. Therefore, the veteran has submitted no competent evidence to support his lay assertions that he currently suffers from numbness in the toes an fingers due to a disease or injury which was incurred in or aggravated by service. Absent competent medical evidence which would support his lay assertions, the Board finds that a well-grounded claim for service connection for numbness of the toes and fingers has not been presented in this case. D. Kidney Stones The crucial determination before the Board in regard to this issue is whether his recently diagnosed kidney condition is due to disease or injury which was incurred in or aggravated by service. The service medical records do not show any treatment for any kidney problems. The separation examination noted no pertinent complaints, no significant abnormalities, and the physical examination was within normal limits. Finally, prior to his separation from service, the veteran signed a statement which acknowledged that there had been no change in his medical condition since his separation examination. The first recorded diagnosis of a kidney disorder was noted in March 1991, approximately 22 years after service, when the veteran was hospitalized for left ureteral calculus with secondary left hydronephrosis and urinary tract infection; and no opinion as to the etiology of the veteran’s condition was noted by the treating physicians. In fact, in the submitted private records spanning approximately 3 years of treatment since the veteran was first recorded as having had a kidney disorder, there is no medical opinion attributing the onset of his condition to service. Therefore, no competent evidence has been presented to show that his current kidney disability is due to disease or injury which was incurred in or aggravated by service. Again, as with the other claims currently before the Board, the only evidence of in the record as to the cause of the veteran’s kidney disorder are his lay assertions. Since his lay testimony is not competent evidence of medical causation, the veteran’s claim cannot be well grounded. Epps v. Brown, 9 Vet.App. at 344; Franzen v. Brown, 9 Vet.App. 235 (1996); Espiritu, supra. Absent competent medical evidence which would support his lay assertions, the Board finds that a well-grounded claim for service connection for kidney stones has not been presented in this case. The Board would note that a remand, pursuant to 38 U.S.C.A. § 5103(a) (If the veteran’s application for benefits is incomplete, the VA shall notify the veteran of the evidence necessary to complete the application), is not necessary. Robinette v. Brown, 8 Vet.App. at 80. The veteran has not put the VA on notice that competent evidence exists that supports his claims that his claimed conditions are linked to disease or injury in service. Furthermore, the RO has ensured that the veteran has submitted a complete application. In his VA 21-526, the veteran reported treatment at Uniontown hospital for kidney stones. In his Notice of Disagreement, he reported he had received treatment at the Oakland, VAMC in Pittsburgh, Pennsylvania in August 1993. These records have been associated with the claims folder. Thus, the Board is of the opinion that the RO has associated with the claims folder all the available medical records for consideration. Therefore, under the circumstances of this case, the VA has not been put on notice that relevant evidence exists, or could be obtained, which, if true, would make the veteran’s claims “plausible.” Robinette, 8 Vet.App. at 80. Consequently, a remand is not appropriate under the facts of this case. Therefore, since the veteran has not submitted competent evidence that that supports his lay contentions that his claimed disabilities are due to disease or injury in service, well-grounded claims have not been presented. Caluza, 7 Vet.App. at 506; See also Brammer; Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992) Accordingly, since he has not presented well-grounded claims, service connection must be denied. ORDER As a well-grounded claim for service connection for chlorance as secondary to exposure to herbicides has not been presented, the appeal is denied. As a well-grounded claim for service connection for kidney stones has not been presented, the appeal is denied. As a well-grounded claim for service connection for numbness of the toes and fingers has not been presented, the appeal is denied. As a well-grounded claim for service connection for a rash on the feet has not been presented, the appeal is denied. STEPHEN L. WILKINS 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 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 -