Citation NR: 9719300 Decision Date: 06/03/97 Archive Date: 06/13/97 DOCKET NO. 95-28 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for headaches. 2. Entitlement to service connection for otitis media. 3. Entitlement to service connection for a hearing loss disability. 4. Entitlement to service connection for a cervical spine disorder. 5. Entitlement to service connection for residuals of exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Associate Counsel INTRODUCTION The appellant (the veteran) had active service from November 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for headaches, otitis media, a hearing loss, a cervical spine disorder, and exposure to Agent Orange. The veteran’s claims of entitlement to service connection for a cervical spine disorder, otitis media, headaches, and hearing loss disability, are addressed in the remand appended to this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran claims service connection for 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. 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 veteran has not submitted a well-grounded claim of entitlement to service connection for residuals of exposure to Agent Orange. FINDING OF FACT There is no medical evidence to establish that the veteran has any current disorder or disability as the result of exposure to Agent Orange. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim of entitlement to service connection for residuals of exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e) (1996); Slater v. Brown, 9 Vet.App. 240 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that he is entitled to service connection as the result of exposure to Agent Orange. The threshold question is whether this claim is well-grounded within the meaning of 38 U.S.C.A. § 5107. As discussed below, the Board finds that the veteran has not presented a well-grounded claim, and the Board finds that there is no duty to assist him in developing the facts of his claim. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Slater v. Brown, 9 Vet.App. 240, 243 (1996) (citing Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990)). In order for a service connection claim to be well-grounded, there must be competent evidence of current disability (a medical diagnosis), competent evidence of incurrence or aggravation of a disease of injury in service (lay or medical evidence), and evidence of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498, 506 (1995). The credibility of the evidence is presumed in determining whether a claim is well grounded. Id. 506. In the absence of proof of a present disability, however, there can be no valid claim for veterans’ benefits. Brammer v. Derwinski, 3 Vet.App. 223 (1992). Service connection is warranted for a chronic disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1996). Certain diseases, if defined by statute or regulation as chronic, may be presumed service connected if the disease manifested to a degree of 10 percent or more within one year after the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a disorder is not shown to be chronic during service, continuity of symptomatology after service is required to establish that a disorder is chronic. 38 C.F.R. § 3.303. If a veteran was exposed to an herbicide agent during active service, certain diseases or types of diseases associated with exposure to herbicide agents may be presumed service- connected if appearing to a 10 percent degree within the specified presumptive period. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Diseases or types of disease which may be service- connected include 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 sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Because the veteran served in the Republic of Vietnam during the Vietnam era, by regulation his exposure to Agent Orange may be presumed. However, he has not alleged that he suffers from any specific disorder as the result of such exposure, and, in fact, the medical evidence does not show that he suffers from any of the diseases listed at 38 C.F.R. § 3.309(e). The statutory provisions governing veterans’ benefits authorize an award of benefits only where the veteran has a disability as the result of disease or injury incurred during or as the result of service. See, e.g., 38 U.S.C.A. §§ 1110, 1131. Thus, service connection cannot be granted solely on the basis of exposure to herbicide; rather, the veteran must establish that he has disability as a residual of that exposure. Because the evidence in this case does not show that he has any disability as the result of exposure to Agent Orange, he has not submitted a well- grounded claim, and his appeal for service connection for residuals of exposure to Agent Orange must be denied. Brammer v. Derwinski, 3 Vet.App. 223 (1992). The Board recognizes that it is disposing of this issue on a basis different from that stated by the RO, since the veteran was not specifically notified that he had failed to submit evidence to establish a well-grounded claim for service connection for residuals of exposure to Agent Orange. The Board notes that the veteran was, however, clearly notified that service connection is granted for disability incurred in service and that exposure to Agent Orange is not a disability. When a claimant fails to submit a well-grounded claim under 38 U.S.C.A. § 5107(a), VA, under some circumstances, has a duty under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence required to complete the application. Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet.App. 69, 78 (1995). The Board notes that the veteran has not indicated that there are any other relevant records available which would establish that he has a disability as a result of exposure to Agent Orange. The Board has therefore considered whether the veteran has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App 384, 394 (1993). The Board concludes that he has not been prejudiced by the decision to deny his appeal for residuals of exposure to Agent Orange on the basis that it is not well- grounded. See Edenfield v. Brown, 8 Vet.App. 384 (1995). This is true in particular, as the veteran failed to meet any of the initial threshold requirements for establishing a well-grounded claim. ORDER The claim of entitlement to service connection for residuals of exposure to Agent Orange is denied. REMAND The veteran, in a statement submitted in April 1995, indicated that an employment physical conducted proximate to service for Buick Motor Division, Flint, Michigan, disclosed neck and spinal pain. In June 1994, he indicated continuing treatment for neck pain, including treatment in 1973, 1974, 1978, and 1983, as well as more recent treatment. He also stated that he was treated for headaches along with neck and spinal pain. It does not appear that these records have been sought. Therefore, further factual development of the veteran’s claims for service connection for a cervical spine disorder and for headaches is required. See, e.g., Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet.App. 69, 78 (1995). VA ear examination in August 1993 disclosed that the veteran had bilateral conductive hearing loss and bilateral traumatic perforations of the tympanic membrane, as well as chronic otitis media bilaterally. He linked his current ear problems to acoustic trauma which allegedly occurred in service. He also referred to post-service treatment for ear problems, including drainage. At VA medical examination in August 1993, he reported treatment for ear complaints in 1968, and in June 1994, he referred to treatment for his ears in 1980. All such records should be requested. Therefore, this case is REMANDED for the following: 1. The RO should ask the veteran to identify all current providers of treatment for headaches, otitis media, hearing loss and cervical spine disability. All such records should be obtained. 2. The RO should ask the veteran to provide any additional information necessary to obtain records of his 1968 treatment for ear problems; 1968 treatment at Buick Motor Division Hospital, Flint, Michigan; chiropractic treatment in 1973 in Florida; chiropractic treatment in 1974; treatment in 1978 in Oceanside, California; treatment at “Hospital in 29 Palms, Ca” in 1980; and in 1983 in Clio, Michigan, including the names and addresses of the health care providers and the dates of treatment. The RO should attempt to obtain the identified records. 3. When the development specified in paragraphs 1 and 2 is complete, the RO should afford the veteran comprehensive VA audiology and otolaryngology examination to determine the etiology of otitis media and of any hearing loss disability. Any indicated tests should be conducted. The claims folder and a copy of this remand must be made available and reviewed by the examiner(s) prior to the examination. The examiner(s) should obtain a detailed history of the veteran’s in-service and post-service noise exposure. The examiner(s) should provide a medical opinion as to whether it is at least as likely as not that otitis media or hearing loss disability, if found, was the result of disease or injury in service. The reasoning which forms the basis of the opinions should be set forth. 4. If, after completion of the development described in paragraphs 1-2, the RO determines that the veteran has submitted a well-grounded claim for service connection for a cervical spine disorder or for headaches, the RO should conduct appropriate development, including obtaining VA examination and opinion as to whether the veteran has a chronic headache disorder or cervical spine disorder related to service, as appropriate. 5. The RO should review the claims folder to ensure that development has been completed in full. If any development is incomplete, including if an examination does not include the opinions or descriptions requested, appropriate corrective action is to be taken. 6. The RO should then readjudicate the claims. If any benefit remains denied, the veteran and his representative should be provided with a supplemental statement of the case, including information as to well-grounded claims, if appropriate, and should be afforded a reasonable time to respond thereto. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in this decision, detailing the requested development, have, in fact, been substantially complied with. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. When these developments have been completed, and if any benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures. No action by the veteran is required until he receives further notice. (CONTINUED ON NEXT PAGE) NANCY I. PHILLIPS 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -