Citation Nr: 9809540 Decision Date: 03/27/98 Archive Date: 04/14/98 DOCKET NO. 95-14 803 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a skin disorder, to include skin cancer, claimed as secondary to Agent Orange Exposure. 2. Entitlement to service connection for colorectal cancer, claimed as secondary to Agent Orange Exposure. 3. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. 4. Entitlement to an effective date earlier than June 28, 1996, for a total disability rating. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his ex-wife ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The veteran served on active duty from May 1967 to March 1969. This matter was previously before the Board of Veterans’ Appeals (Board) in March 1997. At that time the Board remanded the issues of entitlement to service connection for a skin disorder, to include skin cancer; colorectal cancer; cancer of the lungs; and entitlement to an increased disability rating for PTSD to the RO for further development. Following such development, the RO denied entitlement to service connection for a skin disorder and colorectal cancer and granted service connection for cancer of the lungs by rating decision of July 1997. This grant represents a complete resolution of the appeal as to this issue. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The RO also increased the disability rating assigned to the veteran’s service-connected PTSD from 30 percent to 70 percent. When a claimant is awarded service connection for a disability and subsequently appeals the RO’s initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board observes that the RO has also certified the issue of entitlement to an earlier effective date for the currently-assigned 100 percent disability rating to the Board for appellate review. Although this issue was not previously before the Board, for the purposes of judicial and administrative economy and efficiency, we will review this new issue in conjunction with the previously-remanded ones. CONTENTIONS OF VETERAN ON APPEAL The veteran contends that service connection is in order for a skin disorder, to include skin cancer, and colorectal cancer, both claimed as secondary to Agent Orange exposure. He requests an earlier effective date for the currently- assigned total disability rating on the basis that that lung cancer may have been present long before it was actually diagnosed, and may even have preceded the development of other cancers for which he has received treatment, such as bowel cancer, bladder cancer, and prostate cancer, all diagnosed before the lung cancer. 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 files. 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 a well-grounded claim for entitlement to service connection for a skin disorder, including skin cancer, has not been submitted. The claim must therefore be denied. It is further the decision of the Board that the evidence supports the claim for entitlement to service connection for colorectal cancer. Lastly, it is the decision of the Board that the preponderance of the evidence is against the veteran’s claim for entitlement to an effective date earlier than June 18, 1996, for a grant of a 100 percent disability rating for lung cancer. Appellate consideration of the issue of entitlement to an increased rating for PTSD will be deferred pending completion of the development requested in the REMAND portion of this decision. FINDINGS OF FACT 1. The veteran has not shown the presence of a current skin disorder. 2. The veteran’s colorectal cancer is related to exposure to Agent Orange. 3. The veteran’s initial claim for entitlement to service connection for lung cancer was received at the RO on June 18, 1996. 4. The veteran did not file an informal claim for entitlement to service connection for lung cancer prior to June 18, 1996. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for a skin disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Service connection for colorectal cancer is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1996). 3. An effective date earlier than June 28, 1996 is not warranted for a 100 percent rating for lung cancer. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.1(r), 3.151, 3.400(b)(2)(ii) (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Agent Orange claims Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. 38 C.F.R. § 3.303. New regulations pertaining to Agent Orange exposure, now expanded to include all herbicides used in Vietnam, provide that veterans who served on active duty in Vietnam during the Vietnam era are presumed to have been exposed to Agent Orange or similar herbicides. These regulations also stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. The specified diseases are chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, acute and subacute peripheral neuropathy, non-Hodgkin's lymphoma, porphyria cutanea tarda, prostate cancer, soft-tissue sarcoma, multiple myeloma, and respiratory cancers. With regard to the skin diseases, chloracne or other acneform disease consistent with chloracne, the regulations specify that the skin disorder must have become manifest to a degree of 10 percent within one year after the last date on which the veteran was exposed to the herbicide during active military service for service connection to be warranted. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Entitlement to service connection for a skin disorder, to include skin cancer. The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of a claim that would “justify a belief by a fair and impartial individual that the claim is plausible.” See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order for a claim to be well grounded, there must be competent evidence of a 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 (1995). Where the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1110, 1131. The United States Court of Veterans Appeals (Court) has interpreted the requirement of current disability thus: Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran claims that while serving in Vietnam, he lived in areas which had been sprayed with herbicides and chemical defoliants, bathed in the empty drums which had contained the chemicals, drank from contaminated rivers, and generally received a great deal of exposure to Agent Orange and other harmful chemicals. As discussed above, all veterans who served on active duty in Vietnam during the Vietnam era are presumed to have been exposed to Agent Orange or similar herbicides. Because the veteran served on active duty in Vietnam during the Vietnam era, he is thus subject to this presumption as well. In support of his claim, the veteran contends he has experienced skin problems ever since his service in Vietnam. During a February 1996 hearing on appeal, he testified that he had had skin rashes shortly after his return from Vietnam. In a May 1995 letter written by the veteran’s sister, she noted that when he returned home from service, his feet were bright red. Presently, however, there is no evidence of record showing the existence of a current skin disorder. The veteran’s medical treatment records focus upon the course and treatment of his colorectal and lung cancers. Treatment records from the VA mostly reflect counseling pertaining to PTSD. The report of a June 1997 VA examination conducted pursuant to the Board’s Remand does not indicate the presence of a skin disorder. The Board wishes to emphasize that the veteran’s hearing testimony is considered credible and that his exposure to Agent Orange is presumed under law. It stands to reason that the veteran’s current medical records reflect concern over and treatment for the very urgent cancer conditions from which he suffers, rather than a detailed description of all other body systems. However, in the absence of medical evidence showing a current skin disorder, the claim remains not well grounded and service connection may not be granted. Because the claim is not well grounded, the doctrine of reasonable doubt, embodied in 38 C.F.R. § 3.102, is not for application. When the Board addresses in its decision a question that has not been addressed by the RO, in this case well-groundedness, it must consider 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 (1993). The Board finds that the veteran has been accorded ample opportunity by the RO to present argument and evidence in support of his claim. Any error by the RO in deciding this case on the merits, rather than being not well grounded, was not prejudicial to the veteran. As noted above, when 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 to advise the claimant of the evidence needed to complete the application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). This duty attaches where a claimant has reported the existence of evidence which could serve to render a claim well grounded. Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, the veteran has not identified any other evidence which could potentially support his claim and the RO has fulfilled its obligation to inform the veteran in the August 1995 Statement of the Case, and August 1996 and July 1997 Supplemental Statements of the Case. Furthermore, by this decision, the Board is informing the veteran of the evidence which is lacking and that is necessary to make the claim well grounded. The United States Court of Appeals for the Federal Circuit has recently affirmed the principle that if an appellant fails to submit a well-grounded claim, the VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Epps v. Gober, No. 97-7014 (Fed. Cir. Oct. 7, 1997); 38 C.F.R. § 3.159(a). Entitlement to service connection for colorectal cancer. Colorectal cancer was initially diagnosed in 1993. Exploratory surgery revealed that the tumor had spread so far that excision of the mass necessitated a permanent colostomy and ileopouch. Pathology reports show the tumor was determined to have been a moderately differentiated adenocarcinoma. In 1996, lung cancer was identified as well. Biopsy results were interpreted as showing malignant cells characteristic of either pulmonary or bowel origin, with an inability to distinguish from which the malignancy arose. As of March 1997, there was no liver involvement. In the report of a March 1997 consultation, the veteran’s private physician opined, “From the biopsy which was carried out on 11/14/96, which showed the malignant cells that would be characteristic of either pulmonary or gastrointestinal origin, and with his particular history of the entity of lung cancer caused by agent orange exposure, certainly cannot be ruled out and is of significant question.” In the same report, the physician noted the veteran “has had significant exposure to agent orange which raises a very strong possibility of lung cancer because of the very real causative nature between agent orange and a number of malignancies, lung cancer being one of them, but there are also likely to be a number of yet to be discovered, but inevitably to be discovered other malignancies that are attributable to the exposure to agent orange, of which those on the GI tract are certainly eligible.” A May 1997 letter submitted by another private physician who has treated the veteran since the initial diagnosis of his colorectal cancer contains the following statements: Due to the aggressive nature of his cancer and having rather marked local spread of his disease when he presented and now with pulmonary mets. It is certainly feasible that the Agent Orange has had a contribution to the development and course of his rectal cancer. Following a June 1997 VA oncological examination, the VA examiner provided a discussion of the veteran’s colorectal cancer and lung cancer as follows: It cannot be determined by biopsy results whether these are two separate primaries, or one as a metastasis of the other. Considering the circulation involved, it would seem likely that if [the lung cancer] were metastatic from the bowel, that there would be lesions in the liver, which there are not. Without a family history of cancer, or without this patient having any particular risk factors other than agent orange exposure, it would seem likely that agent orange is involved in these two malignancies, whether they are one or they are different. There is no way to differentiate at this point in time whether the lung [cancer] originated from the bowel [cancer] or there are two primary cancers. However, considering the agent orange exposure, the relatively young age at which the patient developed carcinomas, that there would be agent orange involved. As outlined above, because the veteran served in Vietnam, he is presumed to have been exposed to Agent Orange or a similar herbicide under the provisions of 38 C.F.R. § 3.307(a)(6). However, adenocarcinoma of the colon is not one of the diseases listed in 38 C.F.R. § 3.309(e) as entitled to presumptive service connection. 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 State. 2725, 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 (1994). In other words, if the veteran can show his colorectal cancer was caused by exposure to Agent Orange during his service in Vietnam, service connection is warranted despite the terms of the regulations set forth above. The standard of review to be employed by the Board in resolving each issue raised provides the veteran with the benefit of the doubt. 38 U.S.C.A. § 5107. If the evidence supports the veteran's claim, then the veteran prevails on the claim. If the evidence is in equipoise, application of the benefit of the doubt standard tips the balance in favor of the veteran and the veteran again prevails on the claim. Only if the preponderance of the evidence goes against the claim will the veteran be denied the benefit sought. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In interpreting the statements of the veteran’s treating physicians and the VA examiner, the Board must apply this standard of review. All three are trained physicians with expertise in this area. All three indicate that it is impossible to know with absolute certainty the cause of the veteran’s cancer, but that Agent Orange is the probable cause. Moreover, there is medical evidence which suggests that there is an etiological relationship between the veteran’s lung cancer and his colorectal cancer. There does not appear to be any medical evidence of record indicating that Agent Orange did not play a role in the development of the cancer. In evaluating the record, then, the Board is of the opinion that the physicians’ statements regarding the etiology of the veteran’s colorectal cancer support the veteran’s claim for entitlement to service connection. Service connection Entitlement to an effective date earlier than June 28, 1996, for a total disability rating. As noted above, the veteran is requesting an earlier effective date for the currently-assigned total disability rating on the basis that that lung cancer may have been present long before it was actually diagnosed, and may even have preceded the development of other cancers for which he has received treatment, such as bowel cancer, bladder cancer, and prostate cancer, all diagnosed before the lung cancer. In one submission in support of his claim, he requests an effective date reflecting his discharge from service. In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.151. See Wells v. Derwinski, 3 Vet. App. 307 (1992). Benefits are generally awarded based on the date of receipt of the claim. 38 C.F.R. § 3.1(r), 3.400. Specifically with respect to service connection granted on a presumptive basis, such as the veteran’s lung cancer which was presumed to have been caused by Agent Orange, governing regulation provides that the effective date will be the date entitlement arose, if the claim was received within one year after separation from active duty; otherwise the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(ii). The applicable statutory and regulatory provisions require that VA look to all communications from the veteran which may be interpreted as applications or claims--formal and informal--for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 511(b)(2); 38 C.F.R. §§ 3.1(p), 3.400(o)(2), 3.155(a). See Servello v. Derwinski, 3 Vet. App. 196, 198- 200 (1992). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). The Board notes that the veteran was provided with the substance of the law and regulations governing the effective dates of VA compensation awards in a July 1997 Supplemental Statement of the Case. By rating decision of July 1997 the RO granted service connection for terminal lung cancer and assigned a 100 percent schedular rating, effective June 28, 1996. Apparently, this date was selected as representing the date on which the veteran’s claim for entitlement to service connection was received, according to the date stamp placed on the document by a mail clerk in the regular course of business. A review of the claims file fails to reveal an earlier claim for entitlement to this benefit or any correspondence which could be interpreted as an informal claim for entitlement to service connection for lung cancer. The veteran’s claim for entitlement to service connection for lung cancer was not received within one year of his separation from active duty in 1969. In this case, the governing regulation dictates that the effective date for the award of benefits will be the date of receipt of the claim. Thus, June 28, 1996, when the veteran’s claim for that benefit was received at the RO, constitutes the earliest possible effective date. Although, as the veteran argues, entitlement to the benefit arose before that time, the law specifically provides that the later of the two dates, when entitlement arose versus receipt of the claim for benefits, will trigger entitlement to VA benefits. The preponderance of the evidence is therefore against the veteran’s claim for entitlement to an earlier effective date and the claim must be denied. ORDER A well-grounded claim for entitlement to service connection for a skin disorder not having been submitted, the benefit sought on appeal is denied. Service connection for colorectal cancer is granted, subject to the laws and regulations governing the award of monetary benefits. An effective date earlier than June 18, 1996, for the grant of a 100 percent disability rating for lung cancer is denied. REMAND Service connection for PTSD was granted by rating decision of August 1995. A 30 percent disability rating, effective in January 1995, was assigned at that time. Following the Board’s previous Remand, the RO increased the disability rating to 70 percent, also effective in January 1995. Because the veteran has not withdrawn his appeal for a higher disability rating (see 38 C.F.R. § 20.204), we presume that he is seeking the maximum benefit allowed by law and regulation and the appeal thus remains active. AB v. Brown, 6 Vet. App. 35 (1993). New VA regulations codified in 38 C.F.R. § 4.130, regarding the evaluation of neuropsychiatric disabilities became effective November 7, 1996, before the promulgation of a final decision on the veteran’s claim for entitlement to an increased rating for PTSD. 61 Fed.Reg. 52695 (1996). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to an appellant applies unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary does so. Marcoux v. Brown, 9 Vet App 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308 (1991). An analysis regarding which version is more favorable is thus required. In this case, the RO applied the old criteria in an August 1995 rating decision, a November 1995 Statement of the Case, and an August 1996 Supplemental Statement of the Case. In July 1997, however, the RO promulgated a rating decision which simply applied the new criteria. No comparison was performed as required by law. The veteran was informed of the provisions of the new criteria in a July 1997 Supplemental Statement of the Case. Therefore, a Remand is required to allow the RO to perform a comparison of the two sets of criteria in force during the pendency of his appeal for entitlement to an increased disability rating and a determination of which version is more favorable to the veteran. To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. After securing any necessary release(s), the RO should obtain all records of medical treatment pertaining to PTSD, both VA and private, afforded to the veteran which are not contained in his claims file for inclusion in the file. 2. After the development requested above has been completed, the RO should again review the record, making a determination regarding whether the old regulatory criteria or the new criteria are more favorable to the veteran’s claim and then rating his PTSD utilizing the more favorable criteria. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. While this case is in remand status, the veteran is free to submit additional evidence and argument on the questions at issue. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Veterans Appeals (Court) 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. 1997) (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. V. L. Jordan 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 (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 -