Citation Nr: 9628253 Decision Date: 03/21/96 Archive Date: 10/23/96 BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 DOCKET NO. 94-05 562 DATE MAR 21 1996 On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for chloracne, claimed as a residual of Agent Orange exposure. 2. Entitlement to service connection for a seizure disorder, claimed as a residual of Agent Orange exposure. REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from January 1970 through January 1973. He was stationed in the Republic of Vietnam from October 1970 through October 1971. In July 1979, the Veterans Administration (now the Department of Veterans Affairs, hereinafter VA) Regional Office in Seattle, Washington, denied entitlement to service connection for temporal lobe seizures, claimed as epilepsy. The veteran was notified of that decision, as well as his appellate rights; however, he did not initiate an appeal. In October 1981, the veteran requested that his claim for service connection for epilepsy be reopened. In November 1982, the RO found that the veteran had not submitted new and material evidence with which to reopen his claim. Therefore, it confirmed and continued the prior denial. It also denied service connection for the residuals of Agent Orange exposure. The veteran appealed the denial of service connection for a seizure disorder. He did not perfect an appeal with respect to the Agent Orange claim. In February 1984, following a de novo review of the evidence, the Board of Veterans Appeals (Board) confirmed and continued the denial of service connection for a seizure disorder. In the early 1990's, the veteran claimed entitlement to service connection for chloracne and for a seizure disorder, both allegedly the result of Agent Orange exposure. In May 1994, following a de novo review of the evidence, the RO denied those claims. In August 1995, the veteran had a hearing before a traveling member of the Board. He testified that he had skin disease, including chloracne, as the result of Agent Orange exposure in service. He also testified that his seizure disorder was either the result of Agent Orange exposure or the result of a head injury in service. After reviewing the file, the Board notes that the appeal has been developed strictly on the issues of service connection for chloracne and service connection for a seizure disorder, both claimed as the result of Agent Orange exposure. The claims of service connection for skin disease generally or a seizure disorder as the result of head injury have not been developed on this appeal. Accordingly, the Board will confine its decision to the questions regarding Agent Orange exposure. The RO should, however, take appropriate action to develop the broader issues. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he has chloracne and a seizure disorder, both primarily the result of exposure to Agent Orange in the Republic of Vietnam. Therefore, he maintains that service connection is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. 7104 (West 1991 & Supp. 1995), 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 evidence does not show well-grounded claims of service connection for chloracne or a seizure disorder, both claimed as residuals of Agent Orange exposure. FINDINGS OF FACT 1. The claim for service connection for chloracne, allegedly the result of Agent Orange exposure in service, is not plausible. 2. The claim for service connection for a seizure disorder, allegedly the result of Agent Orange exposure in service, is not plausible. CONCLUSIONS OF LAW 1. The claim for service connection for chloracne, allegedly the result of Agent Orange exposure in service, is not well-grounded. 38 U.S.C.A. 5107(a) (West 1991 and Supp. 1995). 2. The claim for service connection for a seizure disorder, allegedly the result of Agent Orange exposure in service, is not well-grounded. 38 U.S.C.A. 5107(a) (West 1991 and Supp. 1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As with all issues, the threshold question is whether the veteran has presented evidence of a well-grounded claim; that is, a claim which is plausible. If he has not, the claim must fail. The VA would then have no further duty to assist him in the development of that claim, as such development would be futile. 38 U.S.C.A. 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The United States Court of Veterans Appeals (Court) has said repeatedly that 38 U.S.C.A. 5107(a) (West 1991) unequivocally places an initial burden on a claimant to produce evidence that his claim is well-grounded. See Grivois V. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The Court has stated that the quality and quantity of the evidence required to meet the statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. Further, in order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and 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). In this case, the veteran's medical records, both in and after service, are completely negative for any complaints or clinical findings of chloracne. The only findings of a skin disorder of any kind are alopecia areata, noted on the veteran's service entrance examination and eczematous dermatitis, noted during a VA examination in November 1982. Absent a diagnosis of chloracne, the Board finds no plausible basis for service connection for that disorder. Accordingly, that portion of the claim is not well- grounded and, therefore, it must fail. The veteran's service medical records are also negative for any recorded complaints or clinical findings of a seizure disorder. Such a disorder was not clinically reported until December 1978, when Harvey M. Sales, M.D., made a diagnosis of temporal lobe seizures. At that time, the veteran reported a history of an episode, manifested by tonic-clonic movements, in October 1977. During a VA examination in January 1982, the veteran reported that in Vietnam in 1970, he worked in areas of "spray drift" from Agent Orange. He noted that the exposure occurred approximately once a week over a period of four months. He also noted that he began having blackouts without seizures in 1973 and that his first grand mal seizure had occurred in 1975. In August 1995, the veteran had a hearing before a traveling member of the Board. He testified to his Agent Orange exposure in service and to his belief that such exposure was responsible for his seizure disorder. Even assuming that he was exposed to Agent Orange in Vietnam (38 C.F.R. 3.307(a)(6)(iii)), there are simply no medical findings or other credible evidence to support his claim. Moreover, it should be noted that a seizure disorder is not among the disabilities which VA presumes to be related to Agent Orange exposure. 38 C.F.R. 3.309(e). The only reports of a relationship between a seizure disorder and Agent Orange are offered by the veteran; however, he is not qualified by training or experience to render opinions as to medical diagnosis or causation. Lay witnesses are competent to provide testimony describing symptomatology that is capable of lay observation. They cannot provide material and probative testimony where an expert opinion is required. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Therefore, although the veteran may be sincere in his beliefs, his unsupported conclusions are of limited, if any, value in resolving the claim in his favor. Therefore, that claim is not wellgrounded and must also fail. ORDER Service connection for chloracne, claimed as a residual of Agent Orange exposure, is denied. Service connection for a seizure disorder, claimed as a residual of Agent Orange exposure, is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, 6, 108 Stat. 740, 741 (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. Under 38 U.S.C.A. 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This 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) (1995).