Citation Nr: 9806417 Decision Date: 03/04/98 Archive Date: 03/20/98 DOCKET NO. 95-36 442 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a bilateral eye disorder. 2. Entitlement to service connection for residuals of a left eye laceration. 3. Entitlement to service connection for a pulmonary disorder. 4. Entitlement to service connection for residuals of Agent Orange exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Phillip L. Krejci, Associate Counsel INTRODUCTION The veteran had active service from November 1968 to August 1970. On an April 1993 application for compensation, VA Form 21- 526, he sought service connection for eye injuries, pleurisy, and the residuals of Agent Orange exposure. He reported that he currently had asthma and an eye disorder and that, in service, he had a laceration of the left eye, eye injuries from exposure to arc welding, pleurisy, and exposure to Agent Orange. This appeal arises from a July 1994 rating decision of the New York, New York, Regional Office (RO) which denied service connection for an eye condition, a laceration of the left eye, pleurisy, and residuals of exposure to Agent Orange. In his Substantive Appeal, the veteran requested a Travel Board hearing. He withdrew that request in a November 1995 statement. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred by failing to grant service connection for a bilateral eye disorder, for residuals of a laceration of the left eye, and for a pulmonary disorder. He maintains that his vision was so poor that he should not have been accepted into service, and his current eye difficulties should be service-connected. He further asserts that, in service, he suffered a laceration of the left eye in an enemy attack, was exposed to Agent Orange, and had pleurisy. He states he currently has asthmatic bronchitis which he never had prior to his Vietnam tour. He contends that these disorders were first manifested or were aggravated in service. 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 the pertinent 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 claims for entitlement to service connection for a bilateral eye disorder, for residuals of a left eye laceration, for a pulmonary disorder, and for residuals of Agent Orange exposure are not well grounded and must be denied. FINDINGS OF FACT The claims for entitlement to service connection for a bilateral eye disorder, for residuals of a left eye laceration, for a pulmonary disorder, and for residuals of Agent Orange exposure are not plausible, as they are not accompanied by adequate supporting medical evidence. CONCLUSION OF LAW The veteran’s claims for service connection for a bilateral eye disorder, for residuals of a left eye laceration, for a pulmonary disorder, and for residuals of Agent Orange exposure are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Evidence The veteran’s service medical records include a May 1968 enlistment examination where it was noted that he had a “visual defect – wears glasses.” Testing showed distant vision of 20/100, corrected to 20/20, in the right eye; and 20/200, corrected to 20/30, in the left eye. A March 1969 clinical report in the service records appears under the stamped entry, “U.S. Naval Construction Battalion Center, Davisville, R.I. 02854.” It was noted that the veteran worked in a welding shop and had experienced flashes to his eyes. He currently had conjunctivitis, and was given a medicated solution, Gantrisin, to apply to the eyes. Another clinical notation under the Davisville, R.I., Naval Construction Battalion Center, in June 1969, reported observation of an unrelated condition, a rash of the lower lip. The service records contain three clinical reports over two days in September 1969, the first two under the entry “MCB-7 FPO New York, N.Y. 09501,” noting a complaint of right-side chest pain, dizziness, and nausea. The third report appeared under the entry, “91st Evac Hosp APO 96325.” The veteran complained of “pleuritic-type” pain of the right anterolateral chest wall, aggravated by deep breathing or coughing. The impression was pleurodynia versus Tietze’s syndrome. X-rays were ordered. According to an October 1969 chest X-ray report noted under the entry “91st Evac Hosp APO 96325,” his lungs were normal. Also at that time, examination of the heart and lungs was reported as negative. A February 1970 clinical note, under the entry “USN MCB-7 FPO NY, NY 09501,” reflects treatment for a heat rash, with no other complaints. The service records also contain a May 1970 routine eye examination, apparently for a new eyeglasses prescription, under the entry “23d MED BN OPT CL.” The history indicated “last exam: Dec 67,” apparently referring to a preservice refraction for his “old” prescription. The veteran complained of difficulty with distant vision, with no problems otherwise. Visual acuity was noted to be corrected to 20/40 on the right, and 20/60 on the left. Upon fundoscopic examination, the examiner reported bilateral myopia. Externally, the veteran’s eyes were normal. Medical examination at the time of the veteran’s release from active duty, in August 1970, noted distant vision to be corrected to 20/20, bilaterally. Clinical evaluation of the eyes was reported as normal. An October 1988 discharge summary from St. Mary’s Hospital, the admission being for a complaint unrelated to the present appeal, noted that the veteran had a history of asthma and used a Ventolin inhaler. During the course of that hospitalization, he was given respiratory therapy, The diagnoses on discharge included asthma. Treatment records from Thomas Achtyl, M.D., included an August 1988 record noting that the veteran reported to the emergency room with a bad cough and a Ventolin inhaler was prescribed. The cough continued and, on examination, there were scattered wheezes. The diagnosis was bronchospasm. A November 1989 record noted that he currently had bronchitis and sinusitis, with rhonchi bilaterally. A February 1991 record noted that, since he was asthmatic and currently had an upper respiratory infection, antibiotics would be prescribed. A March 1992 record noted that he currently had bronchitis. No abnormalities of the chest were revealed by an August 1992 X-ray. In a March 1993 statement submitted in conjunction with his claim, the veteran stated he had suffered an eye injury while working in a welding shop “[w]hile assigned to the 21st, NCR, at Davisville, RI.” He said he had been blinded for about one week. He further stated he had later been injured when, while running to a bunker during an enemy shelling, he had run into an overhang and cut his left eye, breaking his glasses. This had occurred while he was “on an advance party for MCB Seven, taking over for MCB 58 in Vietnam, approximately Nov 1969 . . . .” He also described being hospitalized for pleurisy, and being sprayed by Agent Orange in the Mekong Delta. A March 1993 letter from Michael Belin, M.D., of the Ophthalmology Department of Albany Medical College, stated that the veteran had a diagnosis of pellucid marginal degeneration in both eyes. Dr. Belin described it as “an extremely rare disorder where there is a band of thinning in the lower part of the cornea with a dramatic change in the shape of the eye causing astigmatism.” The doctor further stated the veteran had undergone corneal surgery in January 1992 in order to improve his vision, and had recently been referred to Dr. Al Morier for contact lenses. Also dated in March 1993, the record contains a letter from Robert G. Tansett, O.D., of the Cataract Care Center, noting examination of the veteran in January 1992. Visual acuity at that time was 20/30 on the right and 20/80 on the left, with correction. Fundoscopic examination revealed myopia, bilaterally. The diagnostic impression was of keratoconus of both eyes. On an October 1993 VA examination, the veteran reported that he had not been involved in spraying Agent Orange but was in many areas where it had been sprayed. Since his return from Vietnam, his major medical problems were asthma diagnosed in 1990, recurrent bronchitis, recurrent colitis with a diagnosis of polyposis, and an occasional tingling sensation and blanching of his hands and fingers. He was a firefighter, and reported occasional chest pain while fighting fires. Currently, he was being treated for bronchitis. On examination, lung fields were clear without rales, rhonchi, or wheezes. Examination of the skin revealed a few acneform lesions. Lymph nodes were clear. There was no evidence of neoplasia by history or examination. Pulmonary function tests revealed a mild obstructive airways defect, and the lungs appeared normal by X-ray. The impression was Agent Orange exposure and a history of asthma, colitis, polyposis of the colon, and chest pain of undetermined etiology. On an October 1993 VA eye examination, medical history reported by the veteran included eye surgery in 1992 on the left, bilateral pellucid marginal degeneration, an eye injury in service, a previous welding burn to both eyes, and distortion and anisoconia. On examination, lids and irises were normal and lenses were clear. The corneas were thinned at the periphery, the left more than the right. The fundus showed retinal changes consistent with myopia in both eyes. Diagnoses included marginal corneal degeneration and myopic retinal degeneration, more so on the left than the right. Accompanying the veteran’s substantive appeal to the Board, in September 1995, was a copy of a Navy document entitled “Enlisted Classification Record,” bearing the date “11/26/6-” (the final digit is not legible). Visual acuity was reported on that form as being 20/400, corrected to 20/40, in the right eye; and 20/400, corrected to 20/40, in the left eye. II. Analysis Service connection will be granted for disability resulting from injury or disease incurred or aggravated in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. However, a claimant seeking benefits under a law administered by the Secretary of Veterans Affairs has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. If the claim is well grounded, the Secretary has the duty to assist a claimant in developing evidence pertaining to the claim. 38 U.S.C.A. § 5107(a). If the claim is not well grounded, there is no duty to assist. Epps v. Brown, 126 F.3d 1464 (Fed. Cir. 1997), aff’g Epps v. Brown, 9 Vet.App. 341 (1996); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Thus, the threshold question is whether the claimant has presented a well grounded, or plausible, claim as to the conditions for which he is seeking service connection. A well grounded claim is one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only plausible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy, supra. To present a well grounded claim, the claimant must provide evidence; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The evidence the claimant must provide must be sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Lathan v. Brown, 7 Vet.App. 359 (1995). Where the determinative issue is factual in nature, competent lay evidence may suffice. Gregory v. Brown, 8 Vet.App. 563 (1996). Where the determinative issue involves medical etiology or diagnosis, medical evidence is required. Lathan, supra. In order for a claim for service connection to be well grounded, there must be medical evidence of current disability, lay or medical evidence of incurrence or aggravation of a disease or injury in service, and medical evidence of a nexus (i.e., a connection) between the injury or disease in service and the current disability. The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet.App. 498 (1995); aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Tidwell v. West, ___ Vet. App. ___, No. 96- 1778, slip op. at 3-4 (Feb. 13, 1998). The veteran contends the RO erred by failing to grant service connection for an eye disorder. He maintains that he entered service with defective vision and suffered a welding burn, that he currently has an eye disorder diagnosed as pellucid marginal degeneration, and that his eye disorder was incurred or aggravated in service. Review of the service medical records, however, fails to show abnormality of the eyes other than impaired visual acuity, which predated service, and an episode of conjunctivitis in March 1969, at which time he complained of having experienced flashes to his eyes while working in a welding shop. There were no subsequent reports of complaints referable to the eyes. The separation examination, in August 1970, noted distant vision to be corrected to 20/20, bilaterally, and reported the eyes to be normal on clinical evaluation. Postservice, the veteran has neither submitted, nor alluded to the existence of, any medical records which would show disability of the eyes from the time he left active duty until 1992, when he began to be seen by eye specialists. Those professionals have reported corneal abnormalities in both eyes, diagnosed as pellucid marginal degeneration and/or keratoconus, and he underwent surgery on his eyes in 1992. He contends he should not have been accepted for service because of his impaired vision, but that is not the issue here. In fact, he served for nearly two years, and his vision was reported as corrected to 20/20 in both eyes at his separation examination. As discussed above, to make out a well-grounded claim, the law requires that the veteran submit medical evidence to connect a present disability to an inservice disease or injury. He has not done that as to his current eye disorders, however diagnosed, and the claim is not well grounded and must be denied. With regard to the veteran’s claim for service connection for residuals of a left eye laceration, there is no evidence in service medical records of such an injury, and, as noted above, his eyes were normal, externally, on a May 1970 examination. The veteran has asserted that he sustained a left eye injury in a combat situation in Vietnam in about November 1969. The Board recognizes that, with respect to an injury or disease claimed to have been incurred during combat, even in the absence of official records to corroborate incurrence of the claimed injury or disease, VA is required to accept as sufficient proof of service connection satisfactory lay or other evidence, provided that the evidence is consistent with the circumstances, conditions, or hardships of such service, and to resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1996). Even accepting, without verification of combat involvement, the veteran’s account of a left eye injury when he ran into a fixed object during enemy shelling, there is no medical evidence of associated disability during the remainder of his active service. Further, there is no evidence, either in the veteran’s postservice treatment records or in the October 1993 VA examination, of residuals of a left eye laceration. Finally, no physician has related the eye disorders which were first observed in 1992 to inservice trauma. Thus, in the absence of evidence of a current eye disability related to inservice injury, the claim is not well grounded and must be denied. As for the claim for service connection for a pulmonary disorder, service medical records showed a complaint of “pleuritic-type” pain with a diagnosis of pleurodynia versus Tietze’s syndrome. However, the veteran’s current pulmonary disorder is asthma, which was diagnosed in 1990, and there is no medical evidence linking his current pulmonary disorder to the single episode of “pleuritic- type” pain 20 years earlier. In the absence of medical evidence of a nexus between military service and a current disability, that claim is not well grounded and must be denied. With regard to the claim for service connection for residuals of Agent Orange exposure, it is not entirely clear what disability the veteran contends resulted from such exposure. VA has found either a causal or statistical relationship between Agent Orange exposure and chloracne or other acneform diseases consistent with chloracne, Hodgkin’s disease and non-Hodgkin’s lymphoma, multiple myeloma, porphyria cutanea tarda, respiratory cancers, and certain soft-tissue sarcomas. 38 C.F.R. § 3.309(e). However, the veteran has not been diagnosed with any of these disorders. He is not precluded from proving that he has a disability resulting from Agent Orange exposure, even though it is not one listed in 38 C.F.R. § 3.309(e), because the regulatory provisions do not operate to exclude the traditional approach. Thus, service connection may be established based on medical evidence of a current disease etiologically related to Agent Orange exposure. 38 U.S.C.A. § 1110; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet.App. 40 (1996). But see Tidwell v. West, supra, slip op. at 3 (Feb. 13, 1998) (“without the benefit of presumptive service connection [in an Agent Orange case], the appellant is obligated to submit an otherwise well-grounded claim”). In a statement submitted with his September 1995 Substantive Appeal, the veteran seemed to suggest that his pulmonary disorder resulted from exposure to Agent Orange, since he did not have asthma or bronchitis before his Vietnam tour. However, no medical evidence has been submitted that he has a disability, whether a pulmonary disorder or any other disorder, that is etiologically related to Agent Orange exposure and, in the absence of such evidence, the claim is not well grounded and must be denied. Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete an application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet.App. 69 (1995). In the present claim, review of the claims file shows that the veteran and his representative were well aware of the need to submit evidence sufficient to well ground his claim. Moreover, the veteran’s detailed accounts of his inservice and postservice history do not indicate the existence of any further medical evidence which would be sufficient to make this claim well-grounded. ORDER Entitlement to service connection for a bilateral eye disorder, for residuals of a left eye laceration, for a pulmonary disorder, and for residuals of Agent Orange exposure are not well grounded and must be denied ANDREW J. MULLEN 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 -