Citation Nr: 9901309	
Decision Date: 01/20/99    Archive Date: 01/22/99

DOCKET NO.  89-01 854	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUE

Entitlement to service connection for a skin disorder 
secondary to exposure to Agent Orange in service.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

W. Sampson, Associate Counsel


INTRODUCTION

The veteran's active military service extended from July 1969 
to February 1971.  He has service in the Republic of Vietnam 
from June 1970 to February 1971.

This appeal comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 1988 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Pittsburgh, Pennsylvania.  That rating decision found that no 
new and material evidence had been submitted to warrant a 
change in a prior denial of a claim for service connection 
for a skin condition, secondary to Agent Orange exposure in 
service.

Shortly following this rating decision, in May 1989, a U.S. 
District Court decision invalidated the regulations which VA 
used to evaluate Agent Orange cases.  Nehmer v. United States 
Veterans Administration, 712 F.Supp. 1404 (N.D. Cal., May 2, 
1989).  On initial review by the Board in July 1989, this 
case was remanded to the RO to be considered when the new 
regulations were in place.  Following the implementation of 
new regulations under the Agent Orange Act of 1991, the RO 
continued the denial of service connection for the veteran's 
skin condition diagnosed as dermatitis in an April 1994 
decision, because this condition was not provided for under 
the Agent Orange Act of 1991. 

This case was returned to the Board and remanded again in 
September 1996 for additional medical evidence and a VA 
examination to include an opinion on the etiology of the 
veteran's skin condition, if shown.  The requested 
development has been completed to the extent necessary and 
the Board proceeds with the appeal.

Service connection for post-traumatic stress disorder and 
entitlement to special monthly pension were denied by the RO 
in a March 1998 rating decision.  Although a notice of 
disagreement was received by the RO in April 1998, and a 
statement of the case issued in October 1998, the veteran has 
not yet perfected his appeal by filing a substantive appeal.  
See 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200.  As such, 
neither issue is properly before the Board at this time.

The Board also notes that service connection for a skin 
disorder on a direct basis, other than as a residual of 
exposure to Agent Orange, was the subject of a final Board 
decision issued in December 1986 which denied service 
connection for a skin disorder.  During the pendency of this 
appeal, the veteran attempted to reopen this claim.  The RO 
determined in a March 1996 rating decision that new and 
material evidence had not been submitted to reopen the claim 
on a direct basis.  This issue has not been developed for 
appellate review, nor is it intertwined with the claim for 
service connection for a skin disorder secondary to exposure 
to Agent Orange in service.


FINDINGS OF FACT

1  The veteran had active military service in the Republic of 
Vietnam during the Vietnam era.

2.  The service medical records do not show any diagnosis of 
chloracne or any other acneform disease during service or 
within the first year after the veteran left the Republic of 
Vietnam.  

3.  No competent medical evidence has been presented of a 
nexus between the veteran's diagnoses of dermatophytosis, 
dyshidrotic eczema, and keratoderma and exposure to Agent 
Orange in service.

4.  The veteran has not presented a plausible claim for 
service connection for a skin disorder, secondary to Agent 
Orange exposure in service. 



CONCLUSION OF LAW

The veteran has not presented a well grounded claim for 
service connection for a skin disorder secondary to Agent 
Orange exposure in service, and therefore there is no 
statutory duty to assist the appellant in developing facts 
pertinent to this claim.  38 U.S.C.A. §§ 101(16), 1110, 1116, 
5107(a) (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.303, 
3.307(a)(6), 3.309(e) (1998).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Preliminary Matters.

The law provides that “a person who submits a claim for 
benefits under a law administered by the Secretary shall have 
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) (West 1991).  
Establishing a well grounded claim for service connection for 
a particular disability requires more than an allegation that 
the disability had its onset in service or is service-
connected; it requires evidence relevant to the requirements 
for service connection and of sufficient weight to make the 
claim plausible and capable of substantiation.  See Franko v. 
Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 
Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 
78, 81 (1990).

The three elements of a “well grounded” claim are: (1) 
evidence of a current disability as provided by a medical 
diagnosis; (2) evidence of incurrence or aggravation of a 
disease or injury in service as provided by either lay or 
medical evidence, as the situation dictates; and, (3) a 
nexus, or link, between the inservice disease or injury and 
the current disability as provided by competent medical 
evidence.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996);  see also 
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998).

In the case of an Agent Orange related claim, when a veteran 
served in the Republic of Vietnam during the Vietnam era, 
competent medical evidence of the existence of a current 
presumptive disease with an open-ended presumptive period of 
time for service connection is sufficient to render the claim 
for service connection for the presumptive disease well 
grounded.  Brock v. Brown, 10 Vet. App. 155, 162 (1997).

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 
an herbicide agent (Agent Orange), 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(a)(6)(iii) (1998).  If a veteran was exposed to a 
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) (1998) are met, 
even if 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, acute and subacute peripheral neuropathy, porphyria 
cutanea tarda, prostate cancer, respiratory cancers, and 
soft-tissue sarcomas.  38 U.S.C.A. § 1116 (West 1991 & Supp. 
1998); 38 C.F.R. § 3.309(e) (1998).  Chloracne, or other 
acneform disease, as well as acute and subacute peripheral 
neuropathy may be presumed to have been incurred during 
active military service as a result of exposure to Agent 
Orange if it is manifest to a degree of 10 percent within the 
first year after the last date on which the veteran was 
exposed to Agent Orange during active service.  38 C.F.R. 
§ 3.307(a)(6)(ii) (1998).  The term 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.  Note 2 to 38 C.F.R. § 3.309(e) (1998).

If the rebuttable presumption provisions of 38 C.F.R. § 
3.307(d) (1998) are also not satisfied, then the veteran’s 
claim shall fail.  38 U.S.C.A. § 1113 (West 1991 & Supp. 
1998); 38 C.F.R. § 3.307(d) (1998).  The Secretary of the 
Department of Veterans Affairs has determined that a 
presumption of service connection based on exposure to 
herbicides used in the Republic of Vietnam during the Vietnam 
era is not warranted for any condition for which the 
Secretary has not specifically determined a presumption of 
service connection is warranted.  See Notice, 61 Fed.Reg. 
414421 (1996).

II.  Factual Background.

In this case, the veteran is alleging that he has a skin 
disorder as a result of his exposure to Agent Orange in 
service.  The RO has obtained the service medical records and 
they appear to be complete.  There is no complaint or 
diagnosis of a skin disorder during service and his skin was 
noted to be normal on the January 1971 separation 
examination.  There is also no indication of any skin 
disorder within the first year after his return from Vietnam.

A VA skin examination in March 1977 noted only a bilateral 
callous disorder.  The examiner specifically noted that there 
was no evidence of a fungal disorder.  Another VA examination 
in August 1984 noted scattered, pigmented, macular-type 
lesions scattered over the torso.  The diagnosis was 
generalized dermatitis.

In a VA skin examination in December 1995, the veteran 
complained of a 20 year history of a rash on his feet, worse 
in the summer.  Following examination, the diagnoses were 
dyshidrosis, keratoderma and onychomycosis.

Another VA examination was afforded the veteran in September 
1996 for the express purpose of determining the etiology of 
any skin disorder.  The veteran again gave a history of a 
rash on his feet and toenail, worse over the past six months.  
He also stated that his toenails were falling off.  He 
complained of pruritus, pain and a foul odor.  He stated that 
he had been treated in the past with topical steroids with 
some improvement.  The condition was worse in the summer with 
heat.  He complained of difficulty wearing shoes.  Objective 
examination of his feet showed lateral hyperpigmented 
microvessicles with scales.  He had onycholysis of the 
toenails with subungual debris.  The plantar surfaces had 
hyperkeratotic plaques.  The diagnoses were dishydrotic 
eczema of the feet, plantar warts and onychomycosis.

In response to a request by the RO for additional information 
on the etiology of the veteran's skin disorder, the Chief of 
Dermatology at the VA Medical Center (VAMC) wrote that the 
veteran had been examined twice before in December 1995 and 
again in September 1996.  On examination, he was found to 
have dermatophytosis, dyshidrotic eczema and keratoderma.  
“All these skin conditions are not related to Agent Orange 
exposure.”

III.  Analysis.

The Board finds that, although the veteran has met the 
regulatory presumption of active service in the Republic of 
Vietnam during the Vietnam era, no competent medical evidence 
has been submitted demonstrating that any skin condition 
identified as chloracne or any other acneform disease 
consistent with chloracne was present during service or was 
manifest to a compensable degree within the year following 
his service in Vietnam.  These are the only skin conditions 
entitled to presumptive service connection due to exposure to 
Agent Orange.  38 C.F.R. § 3.309(e) (1998).  Because neither 
dermatophytosis, dyshidrotic eczema or keratoderma are among 
the diseases listed in 38 C.F.R. § 3.309(e), they cannot be 
presumed to be service connected based on the veteran’s 
exposure to Agent Orange during service in the Republic of 
Vietnam.  38 C.F.R. §§ 3.307(a)(6), 3.309(e) (1997).  
Notwithstanding the foregoing, the United States Court of 
Appeals for the Federal Circuit has determined that the 
Veterans’ Dioxin and Radiation Exposure Compensation 
Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 
5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a 
veteran from establishing service connection with proof of 
actual direct causation.  Combee v. Brown, 34 F.3d 1039 
(Fed.Cir. 1994).  However, the United States Court of 
Veterans Appeals has held that where the issue involves 
medical causation, competent medical evidence that shows that 
the claim is plausible or possible is required to set forth a 
well-grounded claim.  Caluza v. Brown, 7 Vet. App. 498 
(1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

The Board notes that the issue of entitlement to service 
connection for a skin disorder on a direct basis has already 
been decided and denied by this Board in an December 1986 
decision.  In that decision, the Board found that there was 
no chronic skin disorder present during service and no 
relationship between the veteran's current skin disorder and 
his active service demonstrated.  As noted above in the 
introduction to this decision, the veteran's attempt to 
reopen the claim on a direct basis with new and material 
evidence was denied in a March 1996 rating decision.  This 
issue was not developed for appellate review.  The Board will 
therefore not address the issue of direct service connection, 
other than to note that the veteran has presented no medical 
evidence of a nexus or link between his skin disorder and 
exposure to Agent Orange in service.

The Board has thoroughly reviewed the claims file.  However, 
we find no evidence of any plausible claim for a skin 
disorder, diagnosed as dermatophytosis, dyshidrotic eczema 
and keratoderma, secondary to Agent Orange exposure in 
service.  Since the veteran has not met his burden of 
submitting evidence sufficient to justify a belief by a fair 
and impartial individual that his claim is well grounded, it 
must be denied.  See Boeck v. Brown, 6 Vet. App. 14, 17 
(1993) (if a claim is not well-grounded, the Board does not 
have jurisdiction to adjudicate it).

Regulations affording the appellant the benefit of the doubt, 
as provided by 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, 
do not apply where the appellant has not submitted a well-
grounded claim.  Holmes v. Brown, 10 Vet. App. 38 (1997).

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, but VA may be obligated under 38 
U.S.C.A. § 5103(a) to advise a claimant of evidence needed to 
complete his application.  This obligation depends on the 
particular facts of the case and the extent to which the 
Secretary has advised the claimant of the evidence necessary 
to be submitted with a VA benefits claim.  Robinette v. 
Brown, 8 Vet. App. 69, 78 (1995).  Here, unlike the situation 
in Robinette, the veteran has not put the VA on notice of the 
existence of any specific, particular piece of evidence that, 
if submitted, could make his claim well grounded.  See also 
Epps v. Brown, 9 Vet. App. 341 (1996).  Accordingly, the 
Board concludes that VA did not fail to meet its obligations 
under 38 U.S.C.A. § 5103(a) (West 1991).

Finally, the veteran's representative, in November 1998 
arguments, notes that although the veteran was examined in 
December 1995 and again in September 1996, resulting in 
diagnoses of dermatophytosis, dyshidrotic eczema, and 
keratoderma, “[t]he examiner did not render an opinion as to 
the etiology of the disabilities found as requested in the 
remand instructions.”  The United States Court of Veterans 
Appeals (Court) has held that a remand confers on the 
veteran, as a matter of law, the right to compliance with the 
remand orders.  Stegall v. West, 11 Vet. App. 268, 271 
(1998).  However, in this case the only issue to be resolved 
was whether there was any nexus between the veteran's skin 
disorders and exposure to Agent Orange in service.  Although 
the examiner did not render an opinion on the etiology of the 
skin disorders, he did indicate that they were not related to 
Agent Orange.  The Board finds that the RO substantially 
complied with the remand instructions.  The representative 
has not shown how further inquiry into the etiology of the 
veteran's skin disorders would show the missing nexus.


ORDER

Because it is not well grounded, the veteran’s claim for 
service connection for a skin disorder, secondary to Agent 
Orange exposure in service, is denied.  



		
	BETTINA S. CALLAWAY
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 &  Supp. 1998), 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.
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