Citation Nr: 9811691 Decision Date: 04/15/98 Archive Date: 05/06/98 DOCKET NO. 96-29 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for spina bifida occulta at the lumbosacral spine’s L-5 level. 2. Entitlement to service connection for residuals of mustard gas and/or nerve gas exposure. 3. Entitlement to service connection for a lumbosacral spine disability other than spina bifida occulta. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Acosta, Associate Counsel INTRODUCTION The veteran served on active duty from April 1941 to August 1961. The above matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 1995 rating decision of the Department of Veterans Affairs (VA) San Juan Regional Office (RO). The Board notes that, in addition to the above two issues, the veteran’s representatives listed in their statements of October and November 1997 the issues of whether there is new and material evidence sufficient to reopen claims for service connection for arterial hypertension and duodenal ulcer and gastritis, as issues on appeal before the Board. They are not, because the veteran did not perfect their appeal and the Board therefore has acquired no jurisdiction over either one. The Board also notes that the veteran submitted in his Substantive Appeal (VA Form 9) of May 1996, for the first time, claims for service connection for a throat and ear condition, a nervous condition and arthritis of the right knee. These new claims have not been adjudicated and are referred back to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he should be service-connected for disabilities of the lumbosacral spine, to include spina bifida occulta at the L-5 level, and for residuals of exposure to mustard gas and/or nerve gas. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West Supp. 1997), has reviewed and considered all of the evidence and material of record in the claims folders. Based on its review of the relevant evidence in the above matters, and for the following reasons and bases, it is the decision of the Board that the claim of entitlement to service connection for spina bifida occulta at the lumbosacral spine’s L-5 level lacks legal merit or entitlement under the law. It is also the decision of the Board that the claim of entitlement to service connection for residuals of mustard gas and/or nerve gas exposure is not well grounded. The claim of entitlement to service connection for a lumbosacral spine disability other than spina bifida occulta will be discussed in the Remand portion of this decision. FINDINGS OF FACT 1. The diagnosed spina bifida occulta at the lumbosacral spine’s L-5 level is a congenital condition and not a disability for VA purposes. 2. No disability causally related to the claimed, but unconfirmed, incidents of exposure to mustard gas and/or nerve gas during service, is currently manifested. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for spina bifida occulta at the lumbosacral spine’s L-5 level lacks legal merit or entitlement under the law. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304, 4.9 (1997); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. The claim of entitlement to service connection for residuals of mustard gas and/or nerve gas exposure is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.305, 3.316 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question that must be resolved at the outset of the analysis of any issue is whether each one of the appealed claims is well grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The United States Court of Veterans Appeals (Court) has said that VA’s statutory “duty to assist” under 38 U.S.C.A. § 5107(a) (West 1991) does not arise until there is a well-grounded claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board does not have jurisdiction to adjudicate claims that are not well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). An appellant has, by statute, the duty to submit evidence that a claim is well-grounded, which means that the evidence must “justify a belief by a fair and impartial individual” that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the appellant is not met. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In order for a claim for service connection 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 during service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). 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. See Murphy, at 81. 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 use of the term “well-grounded,” however, is confined to an evidentiary context in the field of veterans’ benefits. Accordingly, the Court has held that, where the law and not the evidence is dispositive of a case, a claim for VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. In such cases, the application of the “not well- grounded” phrase would be legally imprecise, if not incorrect. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1997). Service connection may also 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. 38 C.F.R. § 3.303(d) (1997). However, mere congenital or developmental defects, refractive error of the eye, personality disorder and mental deficiencies are not diseases or injuries in the meaning of the applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (1997). The First Issue Entitlement to service connection for spina bifida occulta at the lumbosacral spine’s L-5 level: According to the record, spina bifida occulta at the lumbosacral spine’s L5-S1 level was initially diagnosed in May 1989. The diagnosis was thereafter confirmed, as shown by the reports of VA X-rays that were dated in September 1992, February and April 1993, and September 1994. The Court has defined spina bifida occulta as a congenital cleft of the vertebral column with hernial protrusion of the meninges. Blanchard v. Derwinski, 3 Vet. App. 300, 301 (1992); Godfrey v. Brown, 7 Vet. App. 398, 401 (1995). As noted earlier, congenital defects or conditions are not diseases or injuries in the meaning of the applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (1997). Therefore, the law (VA regulations, in this case), and not the evidence, is dispositive of this case and the appeal should be, and thereby is, terminated, or denied, because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where a claim is not well grounded, or not plausible due to lack of entitlement under the law, as in the present case, it is incomplete, and VA is obliged under the provisions of 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence needed to complete his or her application. Robinette v. Brown, 8 Vet. App. 69 (1995). The nature and extent of the above obligation, however, depends on the particular circumstances of each case. Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). There must exist “some degree of probability” that the claimant will be able to obtain the additional information needed in order for that obligation to arise. Marciniak v. Brown, 10 Vet. App. 198, 202 (1997). No such obligation arises “in circumstances where the performance of that duty would be a futile act.” Franzen v. Brown, 9 Vet. App. 235, 238 (1996); see, also, Epps v. Brown, 9 Vet. App. 341, 344-345 (1996). The fact that the veteran is claiming service connection for a congenital condition, which VA regulations specifically say cannot be the basis for grants of disability compensation, necessarily means that the performance of the above duty would be a futile act. Accordingly, the cited obligation under § 5103(a) has not arisen and no further assistance to the veteran is warranted. The Second Issue Entitlement to service connection for residuals of mustard gas and/or nerve gas exposure: In addition to the aforementioned statutory and regulatory provisions pertaining to the granting of service connection, the following conditions can also be service connected if it is demonstrated that there was exposure to the specified vesicant agents during active military service under the circumstances described below, together with the subsequent development of any of the indicated conditions: (1) Full-body exposure to nitrogen or sulfur mustard during active service together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation or nasopharyngeal cancer, laryngeal cancer, lung cancer (except mesothelioma) or squamous cell carcinoma of the skin. (2) Full-body exposure to nitrogen or sulfur mustard or Lewisite during active service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma or chronic obstructive pulmonary disease (COPD). (3) Full-body exposure to nitrogen mustard during active service together with the subsequent development of acute nonlymphocytic leukemia. 38 C.F.R. § 3.316(a) (1997). Service connection may not be established for any of the above conditions if the claimed condition is due to the veteran’s own willful misconduct or if there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition. 38 C.F.R. § 3.316(b) (1997). Additionally, M21-1, Part 3, Chapter 5, Subchapter II, § 5.18 (hereinafter, “the M21-1”) provides guidance for the development of claims involving allegations of exposure to mustard gas during service. According to this document, the claimed exposure may have occurred: (a) during field or chamber testing; (b) under battlefield conditions in World War I; (c) while the veteran was present at the German air raid on the harbor of Bari, Italy, in World War II; or (d) if the veteran was engaged in the manufacturing and handling of vesicant (blistering) agents during active military service. According to the M21-1, the Army conducted research into the effects of chemical warfare on individuals dating from World War II (early 1940’s) until the program was terminated in 1975. Prior to the early 1950’s, information about a person’s participation in any kind of testing by the Army was placed in the individual’s service medical records, which are usually stored at the National Personnel Records Center (NPRC) in Missouri. Since the 1950’s, however, the records on testing for what the M21-1 calls “medical volunteers” have been compiled in different formats and stored in a number of locations. Some are in microfiche, others on magnetic tape and others remain on paper. In developing the claim, the RO should request information from both the NPRC and, in cases of claimed exposure prior to the early 1950’s, from the Commander of the U.S. Army Chemical and Biological Defense Agency (USACBDA) at Aberdeen Proving Ground in Maryland. The veteran has alleged that he was exposed to mustard and/or nerve gas being “launched by planes every day” while stationed in Panama during service, in 1945. He has, however, not expanded on his allegations and has not claimed a specific disability believed to be secondary to the alleged exposure to mustard gas and/or nerve gas. A careful review of the veteran’s service medical records reveals that he did serve in Panama. However, the service medical records contain no evidence of the claimed exposure to mustard and/or nerve gas at any time during service. As noted above, the M21-1 provides that claims of exposure to mustard gas can also be verified by requesting information from the USACBDA when the veteran claims exposure prior to the 1950’s. This does not appear to have been done by the RO but the Board is of the opinion that a remand for such additional development is unwarranted since, as explained below, none of the disabilities associated, for VA purposes, with exposure to vesicant agents during service has been diagnosed. Furthermore, the veteran has not claimed any specific disability nor has produced competent medical evidence linking any current disability to the claimed exposure. The claims folders contain evidence of post-service medical (mostly VA) treatment for a variety of physical ailments between 1973 (approximately 12 years after discharge) and 1995. This includes treatment for a duodenal bulb ulcer, prostatitis, pharyngitis, hypertension, knee and lower back problems, a benign back lipoma that was excised in 1978 and a “mixed tumor” of the salivary gland that was excised in 1973 which, while initially deemed “mixed” in nature, was thereafter noted to have been benign (see a consultation sheet of October 23 and 24, 1983, signed by the Chief of the U.S. Naval Hospital’s Otolaryngology Division in Miami, Florida). In his Substantive Appeal of May 1996, the veteran said that the RO had failed in its duty to assist since the record showed that, while in service, he suffered from “a series of conditions” that he was still experiencing today, although he acknowledged that the present conditions “m[ay] or may not be related to mustard and nerve gas exposure.” Again, he did not mention the specific disabilities he claims are due to the alleged exposure. He did list a throat and ear condition, a nervous condition, back problems and arthritis of the right knee in this form, but it appears that he is actually claiming direct service connection for these disabilities. The Board has accordingly referred back these issues for their initial consideration and adjudication by the RO, except the back issue, which is being remanded in the Remand portion of this decision for further development, as it has already been adjudicated and its denial was timely appealed. As discussed above, the record lacks competent evidence of actual exposure to either mustard and/or nerve gas during service. Additionally, none of the disabilities presumed by VA regulation to be causally related to exposure to vesicant agents (i.e., chronic conjunctivitis, keratitis, corneal opacities, scar formation or nasopharyngeal cancer, laryngeal cancer, lung cancer (except mesothelioma), squamous cell carcinoma of the skin, a chronic form of laryngitis, bronchitis, emphysema, asthma, COPD and acute nonlymphocytic leukemia) has ever been diagnosed, nor has the veteran provided competent medical evidence establishing the necessary nexus between any present disability and the claimed, but unconfirmed, incidents of exposure to mustard and nerve gas. By not submitting competent evidence fulfilling the three aforementioned Caluza criteria, the veteran has clearly failed in his initial duty to submit a claim for service connection for residuals of exposure to mustard and/or nerve gas that is well grounded. The claim has failed and must be denied. With respect to VA’s duty to further assist a claimant under § 5103(a), the Board notes that there is no evidence in the record demonstrating a reasonable possibility that the veteran might be able to produce the evidence that is necessary for this claim to be well-grounded. VA's obligation under the cited statute has therefore not arisen and no further assistance to the veteran is warranted. ORDER 1. Service connection for spina bifida occulta at the lumbosacral spine’s L-5 level is denied. 2. Service connection for residuals of mustard gas and/or nerve gas exposure is denied. REMAND OF THE THIRD ISSUE The claim of entitlement to service connection for a low back disorder (hereinafter, a lumbosacral spine disability other than spina bifida occulta) was denied by the RO in its rating decision of September 1995. The veteran did not disagree with the denial of this specific claim when he submitted his October 1995 Notice of Disagreement (NOD) with the denial of the two other claims reviewed in the present decision but he did so in his Substantive Appeal of May 1996, when he specifically listed “back problems” as one of the disabilities for which he believed he should be service- connected. The veteran’s May 1996 NOD with the issue of entitlement to service connection for a lumbosacral spine disability other than spina bifida occulta was timely and he therefore is entitled to be furnished with a Statement of the Case (SOC), complete enough, as set forth in 38 C.F.R. § 19.29 (1997), and providing the veteran and his representative with a reasonable period of time to perfect the appeal and an opportunity to request a hearing, if the veteran so desires, as set forth in 38 C.F.R. § 19.30 (1997). The veteran should be reminded that, since more than one year has already elapsed since he was informed of the denial of his claim for service connection, he needs to perfect his appeal (only if he wishes to do so, of course) within the timeframe provided by the RO in the SOC. If he doesn’t do so, the RO may close the appeal for failure to respond to the SOC within the period allowed and the September 1995 denial will be final. 38 C.F.R. §§ 19.32, 20.1103 (1997). VA’s duty to assist appellants in the development of facts pertinent to their claims, under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1997), and as set forth by the Court in Littke v. Derwinski, 1 Vet. App. 90 (1990), requires that VA accomplish additional development of the evidence if the record currently before it is inadequate. Accordingly, the appealed claim for service connection is REMANDED for the following: 1. The RO should furnish the veteran with a Statement of the Case complete enough as to allow him to present written and/or oral arguments before the Board, as set forth in 38 C.F.R. § 19.29 (1997), and properly advising him of the steps needed to perfect his appeal of the issue of entitlement to service connection for a lumbosacral spine disability other than spina bifida occulta, and the procedures by which he can request a hearing, if he so desires, as set forth in 38 C.F.R. § 19.30 (1997). The veteran also should be reminded that, since more than one year has already elapsed since he was notified of the denial of his claim for service connection, he needs to perfect his appeal (only if he wishes to do so, of course) within the timeframe provided by the RO in the SOC. If he doesn’t do so, the RO may close the appeal for failure to respond to the SOC within the period allowed and the denial of September 1995 will be final. 38 C.F.R. §§ 19.32, 20.1103 (1997). 2. If the veteran perfects his appeal, the Board should further assist him, by scheduling a hearing, if requested, and/or furnishing him with a Supplemental Statement of the Case, if he submits additional pertinent evidence, and should thereafter return the claims folders to the Board for appellate review of the claim. If, however, the veteran does not perfect his appeal, no further action should be taken by the RO. The purpose of this REMAND is to further develop the evidentiary record and to afford the veteran due process of law. No action is required of the veteran until he receives further notice. The RO is requested to afford expeditious treatment to the claim hereby being remanded. The law requires that all claims that are remanded by the Board or by the 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 1991) (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. MICHAEL S. SIEGEL Acting Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 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 that appears on the face of this decision (CONTINUED ON NEXT PAGE) 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. Note, however, that appellate rights do not attach to the issue that was addressed in the remand portion of the present 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) (1997). - 2 -