BVA9508088 DOCKET NO. 95-08 110 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for metastatic renal cell carcinoma due to Agent Orange exposure. 2. Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for disability resulting from treatment rendered by the Department of Veterans Affairs during the veteran's hospitalization in June 1989. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD P. H. Mathis, Counsel INTRODUCTION The veteran had active service from July 1962 to August 1972, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 1989, the veteran filed his initial claim for service connection for renal cell carcinoma due to Agent Orange exposure. Initially, the RO did not consider the merits of the veteran's appeal regarding the Agent Orange claim because in May 1989 the United States District Court, Northern District of California, had voided all benefit denials under existing herbicide exposure regulations. New regulations have since been promulgated and the RO applied them in a rating decision of August 1994. In July 1993, the veteran claimed benefits under U.S.C.A. § 1151 for residuals of medication with which he was treated during VA hospitalization in 1989. Although the claim has not been developed or certified on appeal by the RO, the Board is assuming jurisdiction of the issue of entitlement to benefits under U.S.C.A. § 1151 (West 1991), for reasons which shall become apparent. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran's metastatic renal cell carcinoma was caused by his exposure to Agent Orange during service in Vietnam. It is further contended that benefits are warranted for residuals of serum sickness secondary to sulfasalazine treatment during VA hospitalization commencing in June 1989. 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 claim of entitlement to service connection for metastatic renal cell carcinoma due to Agent Orange exposure is not well grounded, but that the preponderance of the evidence supports the veteran's claim for benefits pursuant to 38 U.S.C.A. § 1151 for disability caused by treatment during VA hospitalization commencing in June 1989. FINDINGS OF FACT 1. The claim of entitlement to service connection for renal cell carcinoma due to Agent Orange exposure is not plausible. 2. The veteran has bilateral brachial plexitis secondary to sulfasalzine treatment during VA hospitalization in 1989; the brachial plexitis is not a necessary consequence of the VA treatment. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well-grounded claim for service connection for renal cell carcinoma due to Agent Orange exposure. 38 U.S.C.A. § 5107(a) (West 1991). 2. The requirements for benefits pursuant to 38 U.S.C.A. § 1151 for bilateral brachial plexitis resulting from treatment at a VA hospital commencing in June 1989 have been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1994), as amended, Compensation for Disability Resulting from Hospitalization, Treatment, Examination, of Vocational Rehabilitation, 60 Fed. Reg. 14,222 (March 16, 1995) (to be codified at 38 C.F.R. § 3.358(c)(3)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Renal Cell Carcinoma due to Agent Orange Exposure Initially, one who submits a claim for benefits under a law administered by VA 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). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Veterans Appeals has defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Service connection may be established for disability resulting from injury or disease incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). When metastatic renal cell carcinoma is manifested within a year of service separation, service incurrence may be presumed. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). Also, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (1993); 59 Fed. Reg. 5106 (Feb. 3, 1994) (to be codified at 38 C.F.R. § 3.307). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, even though there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, Non-Hodgkin's lymphoma, porphyria cutanea tarda, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). Here, the veteran contends that metastatic renal cell carcinoma is due to Agent Orange exposure in Vietnam. There is no medical evidence suggesting the presence of the claimed disability during service or for years thereafter, nor is there any medical evidence linking the claimed disability to the veteran's exposure to Agent Orange during service or to any other incident of service. Although the veteran has expressed his opinion that his exposure to Agent Orange caused him to develop renal cell carcinoma, he is not qualified, as a lay person, to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Without the requisite competent medical evidence establishing that the veteran's claim is plausible, he has not met his burden of submitting evidence that his claim is well grounded. Grottveit at 92. II. Entitlement to Benefits Pursuant to 38 U.S.C.A. § 1151 Regarding this issue, the veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991) in that it is plausible and capable of substantiation. Further, in light of the decision below, the duty to assist the veteran in developing the facts of his claim has been fulfilled. In Gardner v. Derwinski, 1 Vet.App. 584 (1991), the United States Court of Veterans Appeals invalidated 38 C.F.R. § 3.358(c)(3), on the grounds that that section of the regulation, which included an element of fault, did not properly implement the statute. The provisions of 38 C.F.R. § 3.358, excluding section (c)(3), remain valid. See Brown v. Gardner, ___U.S.___, 115 S. Ct. 552. 556 n.3 (1994). In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and such injury or aggravation results in additional disability, disability compensation shall be awarded in the same manner as if such disability or aggravation were service-connected. 38 C.F.R. § 3.358, the regulation implementing that statute, provides, in pertinent part, that in determining that additional disability exists, the beneficiary's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization, etc., was authorized. In determining whether such existing disease or injury suffered as a result of hospitalization, medical or surgical treatment is compensable, it will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. 38 C.F.R. § 3.358(b), (c). 38 C.F.R. § 3.358(c)(3) as amended now provides: Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. In this case, the veteran was hospitalized at a VA hospital commencing in June 1989 for treatment of ulcerative colitis. In July 1993, a private neurologist, who was a resident at the VA hospital where the veteran was treated in 1989, reported that the veteran had had chronic brachial plexitis since July 1989. Based upon the clinical course of the veteran's brachial plexitis and upon a review of the literature, the physician concluded that the bilateral brachial plexitis was probably due to serum sickness from sulfasalazine administered previously by VA. The Board has found this opinion to be persuasive since it is based on the veteran's clinical course and medical literature. The Board is satisfied that the preponderance of the evidence supports this claim. ORDER As the claim for entitlement to service connection for metastatic renal cell carcinoma due to Agent Orange exposure is not well- grounded, this aspect of the appeal is dismissed. Benefits pursuant to 38 U.S.C.A. § 1151 for disability caused by medical treatment rendered by the Department of Veterans Affairs during hospitalization commencing in June 1989 are granted. _____________________________ SHANE A. DURKIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 State. 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.