Citation Nr: 9804876 Decision Date: 02/19/98 Archive Date: 03/02/98 DOCKET NO. 95-17 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for cystic fibrosis, including nasal polyposis, as a residual of Agent Orange exposure. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from February 1969 until November 1971. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) from rating decisions of the Louisville, Kentucky Regional Office (RO) which denied service connection for cystic fibrosis, to include nasal polyposis. A review of the record discloses that a supplemental statement of the case dated in January 1993 was provided to the veteran on the issues of entitlement to an increased rating for post-traumatic stress disorder (PTSD), whether new and material evidence had been received to reopen the claim for service connection for residuals of dehydration, and service connection for nasal surgery, gallbladder disease, stomach ulcers, and hiatal hernia; all of which had been timely appealed and were in order for appellate consideration. Correspondence was subsequently received from the veteran in July 1993 indicating that he wished to withdraw his appeal as to PTSD, and requesting that the other claimed disorders be adjudicated as secondary to Agent Orange exposure. It appears that no further action was taken with respect to these matters. Consequently, it is shown that the issues of whether new and material evidence has been received to reopen the claim for service connection for residuals of dehydration, and service connection for gallbladder disease, stomach ulcers, and hiatal hernia have all been in a continuing appeal status since January 1993, and that those disorders have not been adjudicated as secondary to Agent Orange exposure as requested by the veteran. As well, by rating action dated in August 1994, the RO denied service connection for cystic fibrosis, to include nasal polyps, brain aneurysm with seizures, basal cell carcinoma, skin rashes, and a pulmonary disorder, all to include as secondary to Agent Orange exposure. A notice of disagreement dated in August 1994 was received from the accredited representative as to all issues on appeal. The Board notes, however, that the RO only provided a statement of the case as to the issue of entitlement to service connection for cystic fibrosis including nasal polyps as secondary to Agent Orange exposure. It is not shown that the other issues were withdrawn for appellate consideration, nor that the veteran has not been forwarded a statement of the case on those issues. The Board also notes that in the Informal Hearing presentation of the accredited representative dated in January 1998, the issues of entitlement to a permanent and total disability rating for pension purposes and an increased rating for PTSD were raised. However, these matters are not properly before the Board for appellate review at this time and they are referred to the RO for additional consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant asserts that he now has cystic fibrosis as the result of exposure to the herbicide Agent Orange while in service. He contends that he has also had recurring nasal polyps requiring multiple surgeries since service which have been attributed to cystic fibrosis. It is maintained that service connection for cystic fibrosis, to include nasal polyposis, should thus be granted by the Board. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 for service connection for cystic fibrosis, including nasal polyposis, as a residual of Agent Orange exposure is not well grounded. FINDINGS OF FACT 1. There is no competent medical evidence in support of the claim of entitlement to service connection for cystic fibrosis, including nasal polyposis, as secondary to Agent Orange exposure. 2. The claim for service connection for cystic fibrosis, including nasal polyposis as secondary to Agent Orange exposure is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to service connection for cystic fibrosis, including nasal polyposis, as secondary to exposure to Agent Orange is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease contracted in the line of duty or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. § 3.306 (1996). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. 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 C.F.R. §§ 3.307(a)(6), 3.307(d) are met, 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, prostate cancer, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1996); 61 Fed. Reg. 57, 586 (November 7, 1996) (to be codified at 38 C.F.R. § 3.309). The regulations also state that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (1996). The threshold question is whether the veteran has presented a well-grounded claim for service connection. In this regard, the veteran 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); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive, it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. See Epps v. Gober, 126 F.3d 1464 (1997); see also Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v Brown, 8 Vet. App. 563, 568 (1996) (en banc). To establish that a claim for service connection is well grounded, the veteran must satisfy three elements. First, there must be a medical diagnosis of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury. Third, there must be medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, supra. Upon examination in January 1969 for entrance into service, it was recorded that the veteran had shortness of breath and cough from polyps in the nose which had been removed in 1966. The service medical records show no complaints or findings referable to nasal polyps or cystic fibrosis. When examined for separation from service in November 1971, the nose was evaluated as normal. The post-service record reflects that the appellant was seen on a private basis in July 1972 for bilateral nasal polyps, for which he underwent bilateral polypectomy. He provided a history of having had the condition eight times in the past 10 years and indicated that the last time had been six years before. A letter dated in June 1989 from T. M. Jarboe, M.D., informed the veteran that after research and diagnostic testing into his medical problems, the only positive finding had been mildly elevated sweat chlorides. It was felt that this findings in conjunction with his history of recurrent infections, nasal polyps, recurrent episodes of pancreatitis and sterility was adequate to make a diagnosis of cystic fibrosis. J. G. Weigel, M.D., wrote in September 1994 that nasal polyposis was definitely associated with cystic fibrosis. Voluminous other private and VA clinical data of record show treatment throughout the years after service for multiple other complaints and disorders, including cystic fibrosis nasal polyps. The Board has carefully considered the contentions of the veteran and the clinical information submitted by him or on his behalf. However, it must be found that notwithstanding the possibility that the veteran may have been exposed to Agent Orange or other herbicide agents while in Vietnam, neither cystic fibrosis nor nasal polyps is one of the diseases recognized by VA as attributable to such exposure. 38 C.F.R. § 3.309(e) (1996). Thus, the appellant’s allegation of a relationship between his cystic fibrosis and any inservice exposure to Agent Orange or other agent is therefore not competent evidence in the absence of any showing of an appropriate medical background or expertise on his part. See Layno v. Brown, 6 Vet.App. 469-70 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). It is well established that it is the province of trained health care professionals to enter conclusions which require medical opinions as to causation. Jones v. Brown, 7 Vet.App. 134, 137 (1994). The Board notes in this regard that there is also no competent evidence linking the veteran’s cystic fibrosis or his nasal polyps to the period of active duty. It is indicated in the record that the veteran had a long history of nasal polyps prior to service. The evidence clearly does not show that he was seen or treated for that condition during service to establish a basis for aggravation of the pre-existing disorder. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. There is no diagnosis of cystic fibrosis during service or for many years thereafter. See 38 U.S.C.A. § 1110, 1131, 1310 (West 1991); 38 C.F.R. § 3.303. (1996). A well-grounded claim must be supported by evidence, more than merely allegations. See Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Without the requisite competent evidence reflecting that the veteran’s cystic fibrosis or nasal polyps are related to any incident of service, he has not met his burden of submitting evidence that his claim of service connection for such is well grounded. Grottveit, 5 Vet.App. at 93; Tirpak, 6 Vet.App. at 611. Accordingly, the appellant’s claim for entitlement to service connection for the cystic fibrosis, to include nasal polyposis, must be found to be not well-grounded, and the claim must be denied. See Edenfield v. Brown, 8 Vet.App. 384 (1995). As well, the Board notes that the appellant’s reference to an Agent Orange claim as being paid in his substantive appeal received in May 1995 indicates that he received proceeds from the settlement of an Agent Orange class action lawsuit pertinent to In Re Agent Orange Product Liability Litigation, 597 F.Supp. 740 (E.D.N.Y. 1984) aff’d 818 F.2d 145 (2d Cir. 1987). However, it is pointed out that the United States government was specifically dismissed as a party to that action, and the VA is not bound by the decision reached as to the private parties in that matter. It is reiterated to the appellant that neither cystic fibrosis nor nasal polyps is one of the diseases recognized by VA as attributable to Agent Orange exposure by law. See 38 C.F.R. § 3.309(e) (1996). Consequently, the claim for service connection for the cystic fibrosis, to include nasal polyps, as the result of exposure to Agent Orange must be denied. In the absence of competent medical evidence to support the foregoing claim for service connection, the Board can only conclude that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. As the veteran’s claim is not well grounded, the VA has no further duty to assist the veteran in developing the record to support his claim. See Epps, supra. Moreover, the Board is not aware of the existence of any relevant evidence which, if obtained, would make the claim well grounded. See McKnight v. Gober, No. 97-7062 (Fed.Cir. Dec. 16, 1997) (per curiam). Although the Board has considered and decided the issue of service connection for cystic fibrosis, to include nasal polyposis as secondary to Agent Orange exposure on a ground different from that of the RO, which denied the claim on the merits, the appellant has not been prejudiced by the Board's decision. This is because in assuming that the claim was well grounded, the RO afforded the claimant greater consideration than his claim in fact warranted under the circumstances. See Meyer v. Brown, 9 Vet.App. 425, 432 (1996). Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). As the foregoing explains the need for competent evidence of a current disability which is linked by competent evidence to service, the Board views its discussions above sufficient to inform the veteran of the elements necessary to complete his application for service connection for this disorder. Robinette, 8 Vet.App. at 77. ORDER The claim for entitlement to service connection for cystic fibrosis, to include nasal polyposis, as secondary to Agent Orange exposure is not well grounded and is therefore denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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 -