Citation Nr: 0002040 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 97-20 042 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a shrapnel wound of the right arm. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for abdominal aortic aneurysm. 4. Entitlement to service connection for telangiectasia macularis eruptiva perstans claimed as a residual of exposure to Agent Orange (AO). 5. Entitlement to service connection for renal cyst as a residual of exposure to AO. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Associate Counsel INTRODUCTION The veteran had active service from December 1965 to December 1967. This appeal arises from a March 1997 rating action in which the RO denied service connection for a shrapnel wound of the right arm, hypertension, abdominal aortic aneurysm, telangiectasia macularis eruptiva, secondary to AO exposure, and renal cyst, secondary to AO exposure. In his notice of disagreement dated in April 1997, the veteran requested a hearing before an RO hearing officer. The veteran failed to report for the hearing which was set for a date in July 1997. In his substantive appeal, the veteran also claimed entitlement to service connection for kidney stones, a claim which was subsequently denied by the RO in an August 1997 rating decision. A timely notice of disagreement was not thereafter filed with regard to this determination and, thus, this issue is not before the Board for appellate review. 38 U.S.C.A. § 7105 (West 1991). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. At the veteran's examination for entry into service, a one inch scar on the right arm and a blood pressure reading of 164/100 were noted. 3. The veteran's pre-existing scar on the right arm and blood pressure readings are not shown to have increased in severity beyond natural progress during his period of active duty. 4. On separation examination, the veteran was noted to have a scar on his right arm and a blood pressure reading of 130/96 was recorded. 5. The veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that his claims for service connection for abdominal aortic aneurysm, telangiectasia macularis eruptiva perstans, or renal cyst are plausible under the law. CONCLUSIONS OF LAW 1. A shrapnel wound to the right arm and hypertension were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). 2. The veteran has not submitted evidence of well-grounded claims with respect to the issues of service connection for an abdominal aortic aneurysm, telangiectasia macularis eruptiva perstans, or a renal cyst. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background A review of the veteran's service medical records reveals that on entrance examination a one inch scar was noted on his right arm. A blood pressure reading of 164/100 was recorded. In a June 1967 record, it was noted that the veteran had a history of renal colic. He had an attack of renal colic aboard an aircraft from Vietnam. He was asymptomatic at the time of the examination. On discharge examination, he was noted to have a scar on his right elbow and a blood pressure reading of 130/96 was recorded. Private outpatient treatment records dated from May 1993 to October 1995 are associated with the claims folder. The records indicate that the veteran was diagnosed with various conditions including hypertension, aortic aneurysm, right renal mass lesion, and skin lesions. On a VA general examination in February 1996, the examiner noted that the veteran was first diagnosed with aortic aneurysm in April 1995 and that he was hypertensive, by history. On examination, a blood pressure reading of 134/82 was recorded while sitting, with a heart rate of 80 and normal respirations. A blood pressure reading on standing was recorded as 136/86, with respirations of 14 and a pulse of 84. Very distant heart sounds were noted with regular rate and rhythm and without any extra heart sounds. The abdomen was obese. It was impossible to feel the liver or spleen. An abdominal aortic pulse could not be felt. The diagnoses was thoracic aortic aneurysm, right renal cyst, hypertension, and asymptomatic cholelithiasis. The veteran was afforded a subsequent VA cardiovascular examination in February 1996. The examiner noted that the veteran's hypertension was initially identified in 1967, during service. The veteran claimed that he has been on medication for his hypertension since service. On examination, blood pressures of 148/98, 150/100, and 146/106 were recorded. An electrocardiogram was normal except for a PR interval of .22 seconds. PA and lateral X-rays of the chest showed a dilated and tortuous ascending aorta and arch. The heart was not enlarged. The cardiothoracic ratio was 0.5. The diagnoses was hypertension, under pharmacologic treatment since 1967, history of distal dissection of thoracic aorta, and small aneurysm of the abdominal aorta. The veteran was afforded six VA examinations in January 1997. In a general VA examination, the veteran complained of fatigue and of chest pressure and pain on physical exertion. Blood pressure readings of 139/92, 146/98, 154/100, and 148/100 were recorded. There was normal sinus rhythm. There was no evidence of renal impairment. Blood urea nitrogen was 20 and creatinine was 0.9. The diagnoses were hypertension, poorly controlled, status post thoracic aortic aneurysm, right kidney cyst, and history of kidney stone. In a VA dermatological examination, the veteran reported a history of skin problems starting a year after his return from service in Vietnam. On examination, there were multiple, light brown papules scattered on the trunk, back, arms, and legs. There was a positive Barrier's sign. There were three red/tan nodules with surrounding brown hyperpigmentation (one on the right leg and two on the left leg). There was a smooth, mobile, dermal nodule with a central punctum in the right upper back. There were multiple yellow-brown macules on the lateral dorsum of the feet. The diagnoses was telangiectasia macularis eruptiva perstans, dermatofibromas, epidermal inclusion cyst, and pigmented purpura. On VA orthopedic examination, the veteran complained of chronic pain in the right arm. He stated that he received a shell fragment wound to his right arm while he was in Vietnam. Ever since, he has been having residual pain on his wound area and throughout the right elbow. The pain radiated to his right shoulder and had increased in severity. On examination, there was a well healed superficial, surgical scar on the right upper arm, 3 inches long, and localized muscle flabbiness. There was tenderness. There was also tenderness over the superior aspect of the glenohumeral joint of the right shoulder. The assessment was residuals from shell fragment wound over the right upper arm. On VA cardiovascular examination, the veteran complained of chest pain that occurred every day with activity and persisted for a couple of hours to a couple of days. Examination revealed a regular heart rhythm at 68 beats per minute. The apex was 10 centimeters to the left of the mid sternal line in the fifth intercostal space. S1 was normal. S2 was physiologically split. No S4, S3, murmur, or systolic sound was audible. Blood pressure readings of 124/90, 156/106, and 146/94 were recorded. Chest X-rays showed incomplete inspiration, a cardiothoracic ratio of .5, dilated, and tortuous thoracic aorta. There were no changes from the previous X-rays taken in February 1996. The diagnoses was history of hypertension since 1967, pharmacologically controlled; history of dissection of aneurysm of descending thoracic aorta; history of aneurysm of the abdominal aorta; and marked obesity. On VA genitourinary examination, the veteran stated that he had an attack of renal colic while in service. He complained of back pain and urinary hesitancy that afflicts him from time to time. The diagnoses was urolithiasis, per history, and prostate hyperplasia. On VA examination for agent orange exposure determination, it was noted that the veteran had served in Vietnam. The veteran claimed that he had laid on the ground where Agent Orange was sprayed and that he noticed that his shirt was wet afterwards. Blood pressure readings of 150/110, 134/92, 150/102, and 148/100 were recorded. Based on current examination, and the previous VA examinations, the diagnoses was hypertension, morbid obesity, history of nephrolithiasis, benign renal cyst, abdominal aortic aneurysm, symptomatic cholelithiasis, chronic smoker, suggestion of COPD (based on chest X-rays), status-post shrapnel wound injury in the right arm with residual pain, degenerative joint disease status- post disc surgery, and telangiectasia macularis eruptiva perstans with biopsy finding of perivascular infiltration. II. Analysis The threshold question to be answered is whether the veteran has presented evidence of well-grounded claims, that is, claims which are plausible. If he has not presented well- grounded claims, his appeal must fail, and there is no duty to assist him further in the development of his claims because such development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinksi, 1 Vet. App. 78 (1990). Under the applicable criteria, service connection may be granted for a disability resulting from disease or injury contracted in line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). I. Service Connection for Shrapnel Wound of the Right Arm and Hypertension Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The Board notes that a scar on the right arm and a blood pressure reading of 164/100 were recorded at the time of the veteran's examination, acceptance and enrollment in service. Thus, to that extent, the veteran is not presumed to have been sound at entrance. 38 U.S.C.A. § 1111. The Board further finds that the evidence does not establish that there was an increase in disability of the veteran's right arm scar or hypertension during his period of service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). There is no evidence of treatment for a shrapnel wound in service. Also, an increase in the veteran's blood pressure reading was not found. The only other blood pressure reading recorded in service was on the discharge examination. At that time a blood pressure reading of 130/96 was recorded. The veteran has not provided medical evidence that would provide evidence of aggravation of either the right arm scar or hypertension during service. Thus, in the absence of evidence showing an increase in either disability, the preponderance of the evidence is against the claims that the veteran's pre- existing scar of the right arm and hypertension was aggravated by service. II. Service Connection for Abdominal Aortic Aneurysm, Telangiectasia Macularis Eruptiva Perstans, Secondary to Agent Orange Exposure, and Renal Cyst, Secondary to Agent Orange Exposure The U. S. Court of Appeals for Veterans Claims (Court) has held that evidentiary assertions on or accompanying a claim for VA benefits must be accepted as true for the purpose of determining that the claim is well-grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet.App. 492; Tirpak v. Derwinski, 2 Vet. App. 609 (1992); King v. Brown, 5 Vet. App. 19 (1993). 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 inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). Abdominal Aortic Aneurysm The Board notes that all three Caluza requirements must be met in order to well-ground a claim. In this case, the veteran is currently diagnosed with an abdominal aortic aneurysm. Thus, the first Caluza requirement is met. The veteran has alleged that the abdominal aortic aneurysm was first diagnosed in service, but the record otherwise does not contain any evidence that it was. Moreover, the veteran has provided only his opinion to support the contention that his abdominal aortic aneurysm is related to service. The veteran is not competent to render such a medical opinion. Thus, the second and third Caluza requirements have not been met Therefore, absent competent medical evidence of a nexus, or link, between the veteran's abdominal aortic aneurysm and service, the veteran has not submitted a well-grounded claim and the appeal as to this issue is denied. Telangiectasia Macularis Eruptiva Perstans, Secondary to Agent Orange Exposure, and Renal Cyst, Secondary to Agent Orange Exposure With regard to Agent Orange exposure, VA laws and regulations provide that 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 to an herbicide agent during such service, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii) (1999). 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. 38 C.F.R. § 3.307(a)(6)(iii) (1999). "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. Id. If a veteran was exposed to an 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 and 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 and 38 C.F.R. § 3.307(d) are also satisfied: 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; 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) (1999). 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 and porphyria cutanea tarda 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) (1999). Additionally, acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), note 2 (1999). The Secretary of VA 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 Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996). Nevertheless, the United States Court of Appeals for the Federal Circuit has held that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude a claimant from establishing service connection with proof of direct causation, a task "which includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The veteran's DD-214 shows that he served in the Republic of Vietnam during the Vietnam War Era. He received the Vietnam Service and Campaign Medals. His service medical records are negative for any indication of a skin rash or a renal cyst. The Board has carefully evaluated the evidence discussed above, but must conclude that the veteran has not presented well-grounded claims for service connection for telangiectasia macularis eruptiva perstans or renal cyst, both claimed as secondary to Agent Orange exposure. The veteran contends, in substance, that he incurred telangiectasia macularis eruptiva perstans and renal cyst as a result of exposure to Agent Orange while serving in Vietnam. Private outpatient treatment records dated from May 1993 to October 1995 reveal diagnoses for skins lesions and renal mass lesion. Current VA examinations also reveal diagnoses of telangiectasia macularis eruptiva perstans and renal cyst. However, there is no suggestion in the records that the veteran's skin condition or renal cyst was incurred due to exposure to any herbicide agent, or due to any incident of active service. Here, the third Caluza requirement required to well ground a claim has not been met. In addition, the Board would emphasize that telangiectasia macularis eruptiva perstans and renal cyst are not diseases that are included in the list of diseases which the Secretary of Veterans Affairs, acting under the authority of the Agent Orange Act of 1991, has determined as associated with exposure to herbicide agents used in the Republic of Vietnam during the Vietnam era. See 61 Fed. Reg. 57587 (1996); 38 C.F.R. §§ 3.307(a)(6)(d), 3.309(e) (1999). Therefore, these disorders are not listed among the disorders for which presumptive service connection due to Agent Orange exposure is warranted. For the foregoing reasons, it is the decision of the Board that the veteran has failed to meet his initial burden of submitting evidence of well-grounded claims for service connection for the claimed effects of herbicide exposure in service. The Board is unaware of any additional evidence which could serve to well ground the veteran's claims. As the duty to assist is not triggered here by well-grounded claims, the Board finds that the VA has no obligation to further develop the veteran's claims. 38 U.S.C.A. § 5107(a) (West 1991). ORDER 1. Service connection for a shrapnel wound of the right arm is denied. 2. Service connection for hypertension is denied. 3. Evidence of a well-grounded claim not having been submitted, service connection for abdomnal aortic aneurysm is denied. 4. Evidence of a well-grounded claim not having been submitted, service connection for telangiectasia macularis eruptiva perstans, claimed as secondary to Agent Orange exposure, is denied. 5. Evidence of a well-grounded claim not having been submitted, service connection for renal cyst, claimed as secondary to Agent Orange exposure, is denied. D. C. Spickler Member, Board of Veterans' Appeals