Citation Nr: 9830706	
Decision Date: 10/15/98    Archive Date: 10/21/98

DOCKET NO.  96-10 787	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los 
Angeles, California


THE ISSUES

Entitlement to service connection for abscesses and boils, a 
skin rash, bilateral hearing loss, tinnitus, genetic insult, 
dental problems, and residuals of a severed left index 
finger.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. L. Smith, Associate Counsel








INTRODUCTION

The veteran had active service from November 1945 to 
November 1947.  

This appeal is before the Board of Veterans’ Appeals (Board) 
from an August 1994 determination of the Los Angeles, 
California, Department of Veterans Affairs (VA) Regional 
Office (RO).  The RO denied entitlement to service connection 
for abscesses and boils as secondary to radiation exposure, 
skin rashes as secondary to radiation exposure, dental 
problems as secondary to radiation exposure, hearing loss, 
tinnitus, a severed left index finger, and genetic insult.

In his notice of disagreement with the above determination, 
the veteran made clear he was disagreeing with the denial of 
entitlement to service connection for dental problems and 
genetic insult.  The RO referred the issue of service 
connection for dental problems to the outpatient clinic and 
advised the veteran by letter that it had no jurisdiction on 
claims for service connection for birth/congenital defects 
for children and grandchildren.  The issues of entitlement to 
service connection for genetic insult and dental problems are 
addressed in the remand portion of this decision.


CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that VA has not resolved the reasonable 
doubt regarding his claims for service connection in his 
favor.  He asserts that he was exposed to ionizing radiation 
during Operation CROSSROADS when he was stationed on the 
Eniwetok Atoll.  He also asserts that he severed his finger 
during service which left it permanently damaged.  He 
contends that service connection is warranted for his claims 
due to his radiation exposure and the injuries he received 
during service  





DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1998), 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 veteran has not met the initial burden 
of submitting evidence sufficient to justify a belief by a 
fair and impartial individual that his claims for service 
connection for abscesses and boils, a skin rash, bilateral 
hearing loss, tinnitus, and the residuals of a severed left 
index finger are well grounded.


FINDING OF FACT

The claims for service connection for abscesses and boils, a 
skin rash, bilateral hearing loss, tinnitus, and the 
residuals of a severed left index finger are not supported by 
cognizable evidence showing that the claims are plausible or 
capable of substantiation. 


CONCLUSION OF LAW

The claims for service connection for abscesses and boils, a 
skin rash, bilateral hearing loss, tinnitus, and the 
residuals of a severed left index finger are not well 
grounded.  38 U.S.C.A. § 5107(a) (West 1991).  



REASONS AND BASES FOR FINDING AND CONCLUSION

Factual Background

The service medical record show that the veteran was treated 
in April 1946 for painful swelling of the chin.  The 
diagnosis was cellulitis.  He was also treated in 
January 1947 for swelling to the right of the nose which was 
diagnosed as cellulitis.  The September 1947 report of 
physical examination at separation shows a history of 
cellulitis of the chin in 1946.  Examination of the head and 
face was normal.  

Whispered voice testing was 15/15 feet.  The report indicates 
normal clinical evaluations for the extremities and 
examination of the skin.  The examiner indicated "none" under 
summary of defects.

The veteran submitted a newspaper from the Eniwetok Atoll in 
the Marshall Islands published in June 1946.  The paper 
contains various news items pertinent to the servicemen 
participating in atomic bomb testing.  

The record contains a letter from the veteran to his mother 
written in July 1946 where he indicated that he would have to 
evacuate the base at Eniwetok because of a bomb test to be 
conducted the following day.  

Private medical records show that the veteran was seen for 
audiological examinations in February and November 1982, and 
in April 1994.  The records show that the veteran has 
bilateral sloping sensorineural hearing loss.  The 
February 1982 examination report shows that the veteran 
complained of difficulty hearing with the right ear over the 
last two years.  The report indicates a history of noise 
exposure in the military and also from working around large 
compressors for 15 years.  The examiner noted that the 
hearing loss was possibly noise related.  The November 1982 
examination report show matching tinnitus at 15 decibels.  
The April 1994 examination report also indicates a history of 
noise exposure during the military.  

In an April 1995 statement in support of his claims, the 
veteran recounted a number of medical abnormalities including 
having had a growth removed from the top of his head, and 
cracking of his third finger, the etiology of which was 
unknown by his dermatologist.  

Criteria

The United States Court of Veterans Appeals (Court) has held 
that a well grounded claim is “a plausible claim, one which 
is meritorious on its own or capable of substantiation.  Such 
a claim need not be conclusive but only possible to satisfy 
the initial burden of § [5107(a)].” Murphy v. Derwinski, 1 
Vet. App. 78, 81 (1990).  

Where a claim is well grounded VA shall assist the claimant 
in developing the facts pertinent to the claim.  38 U.S.C.A. 
§ 5107(a); Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 
1997). 

In determining whether a claim is well grounded, the 
claimant’s evidentiary assertions are presumed true unless 
inherently incredible or when the fact asserted in beyond the 
competence of the person making the assertion.  King v. 
Brown, 5 Vet. App. 19, 21 (1993).

The Court has articulated the requirements for a well 
grounded claim for service connection as follows: (1) medical 
evidence of a current disability; (2) medical, or in certain 
circumstances, lay evidence of inservice incurrence or 
aggravation of a disease or injury; and, (3) medical evidence 
of a nexus between the claimed inservice injury or disease 
and a current disability.  See Caluza v. Brown, 7 Vet. 
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. 
Cir. 1996) (table).  Where the determinative issue involves 
medical causation, competent medical evidence to the effect 
that the claim is plausible is required.  Id.

Service connection connotes many factors but basically means 
that the facts, shown by evidence, establish that a 
particular injury or disease resulting in disability was 
incurred coincident with active service, or if preexisting 
such service, was aggravated therein.  38 C.F.R. § 3.303(a) 
(1998).  


For the showing of chronic disease in service, there are 
required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
“chronic.”  38 C.F.R. § 3.303(b) (1998).

The regulations also provide that service connection may be 
granted for any disease diagnosed after discharge when all of 
the evidence including that pertinent to service, establishes 
that the disease was incurred in service.  38 C.F.R. 
§ 3.303(d) (1998).

Where a veteran served during a period of war or peacetime 
service on or after January 1, 1947, and a presumptive 
disease such as an organic disease of the nervous system 
becomes manifest to a compensable degree within the 
applicable time limit from the date of termination of such 
service, such disease shall be presumed to have been incurred 
in service, even though there is no evidence of such disease 
during the period of service.  38 U.S.C.A. §§ 1101, 1112, 
1113, 1137 (West 1991 & Supp. 1998);  38 C.F.R. §§ 3.307, 
3.309 (1998).

Service connection for disability that is claimed to be 
attributable to exposure to ionizing radiation during service 
can be demonstrated by three different methods.  Davis v. 
Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. 
App. 67, 71 (1997).  There are certain types of cancer that 
are presumptively service connected specific to radiation-
exposed veterans.  38 U.S.C.A. § 1112(c); 38 C.F.R. 
§ 3.309(d).  Second, “radiogenic diseases” may be service 
connected pursuant to 38 C.F.R. § 3.311.  Third, service 
connection may be granted under 38 C.F.R. § 3.303(d) when it 
is established that the disease diagnosed after discharge is 
the result of exposure to ionizing radiation during active 
service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

With respect to the first method, the Board notes section 
3.309(d)(1) provides that the diseases listed in paragraph 
(d)(2) of this section shall be service-connected if they 
become manifest in a radiation-exposed veteran.  

The provisions of section 3.309(d) limit the diseases subject 
to presumptive service connection to those specified in 
section 3.309(d)(2). 

As to the second method, the provisions of 38 C.F.R. § 3.311 
provide for development of claims based on a contention of 
radiation exposure during active service and postservice 
development of a radiogenic disease.  The provisions do not 
give rise to a presumption of service connection, but rather 
establish a procedure for handling claims brought by 
radiation exposed veterans or their survivors.  See Ramey v. 
Gober, 120 F.3d 1239, 1244 (Fed. Cir. 1997).  Section 3.311 
essentially states that, in all claims in which it is 
established that a radiogenic disease first became manifest 
after service, and it is contended that the disease resulted 
from radiation exposure, a dose assessment will be made.  

The regulation provides a list of recognized radiogenic 
diseases in subsection 3.311(b)(2), and the regulatory time 
period when the diseases must become manifest.  38 C.F.R. 
§ 3.311(b)(5).  In addition, subsection 3.311(b)(4) provides 
that, even if the claimed disease is not one that is already 
recognized as radiogenic under subsection 3.311(b)(2), the 
claim will still be considered, or developed, pursuant to 
38 C.F.R. § 3.311 if the appellant cites or submits competent 
scientific or medical evidence that the claimed disease is 
radiogenic.

Analysis

The Board finds that the veteran has not submitted well 
grounded claims for service connection for abscesses and 
boils, a skin rash, bilateral hearing loss, tinnitus, and the 
residuals of a severed left index finger.  As noted above, 
the requirements for a well grounded claim for service 
connection are as follows: (1) medical evidence of a current 
disability; (2) medical or, in certain circumstances, lay 
evidence of inservice incurrence or aggravation of a disease 
or injury; and, (3) medical evidence of a nexus between the 
claimed inservice injury or disease and a current disability.  
Caluza v. Brown, 7 Vet. App. at 506.

With respect to the veteran's claims for service connection 
for abscesses and boils, a skin rash, and the residuals of a 
severed left finger the Board notes that the veteran has not 
submitted medical evidence establishing current disabilities 
with respect to these claimed disorders.  

In order to establish service connection, the veteran must 
show that an inservice disease or injury has resulted in a 
present disability.  The Court stated in Brammer v. 
Derwinski, 3 Vet. App. 223, 225 (1992), that “Congress 
specifically limits entitlement for service-connected disease 
or injury to cases where such incidents have resulted in a 
disability.”  See also Brock v. Brown, 10 Vet. App. 155, 164 
(1997) (finding a claim not well grounded where the evidence 
of record including a statement of the veteran that he had 
been treated for the disorder did not show a current 
disability).

The veteran claims that he severed his finger during service 
which has resulted permanent disability.  The service medical 
records do not show severance of any finger and he has not 
provided any competent medical evidence regarding any 
treatment for the residuals of an injury to his finger.  
Similarly, while the service medical records show treatment 
for cellulitis, he has not provided any medical evidence that 
he currently has a disability due to "abscesses and boils."  
The veteran reported that he had a growth removed from the 
top of his head and has cracking skin of the third finger, 
the etiology of which was unknown by his dermatologist.  

These statements do not constitute competent medical evidence 
of a current disability.  See Espiritu v. Derwinski, 2 Vet. 
App. 492, 494 (1992) (holding that a witness must be 
competent in order for his statements or testimony to be 
probative as to the facts under consideration).  

With respect to the veteran's claims for service connection 
for tinnitus and hearing loss, the Board finds that the 
record does not contain evidence of a nexus between the 
claimed inservice noise exposure and the current diagnoses of 
hearing loss and tinnitus.  

The service medical records do not show decreased hearing 
acuity or tinnitus at the time of discharge in November 1947, 
and the medical evidence of record shows that hearing loss 
was first diagnosed in November 1982.  The record does not 
contain competent medical evidence linking the post service 
hearing loss and tinnitus to any inservice noise exposure. 

The Board notes that the private examiner in November 1982 
found that the veteran's hearing loss was possibly noise 
related.  The history rendered by the veteran in that 
examination shows that he had noise exposure during service 
and also had worked around compressors for 15 years.  The 
examiner's conclusion does not well ground the veteran's 
claim because it does not relate the veteran's hearing loss 
to the inservice noise exposure.  

The veteran’s claim is predicated on his own lay opinion 
suggesting a link between current disabilities and service.  
Generally speaking, lay persons are not competent to offer 
evidence that requires medical knowledge.  See Grottveit v. 
Brown, 5 Vet. App. 91, 93 (1993) (holding that lay assertions 
of medical causation cannot constitute evidence to render a 
claim well grounded); see also Espiritu, 2 Vet. App. at 494; 
King v. Brown, 5 Vet. App. 19, 21 (1993).  

The question as to whether the veteran currently has 
disabilities with respect to boils and abscesses, a skin 
rash, and the residuals of a severed left index finger 
necessarily involves medical diagnoses; thus, competent 
medical evidence is required.  

As no competent medical evidence is of record showing 
diagnoses of the current claimed disabilities, the veteran’s 
claims must be denied as not well grounded.  Caluza, 7 Vet. 
App. 506.  The question of whether the veteran's hearing loss 
and tinnitus first diagnosed over thirty years following 
discharge also requires competent medical evidence.  Id.

The Board notes that the veteran has submitted evidence which 
suggests that he was a participant in atmospheric nuclear 
testing during Operation CROSSROADS.  

Assuming that the veteran meets the regulatory criteria with 
respect to a "radiation exposed veteran," the record does not 
show that he has a current medical diagnosis of a disease 
specific to a radiation exposed veteran.  See 38 C.F.R. 
§ 3.309(d)(2).  Accordingly, the veteran is not entitled to 
service connection as a radiation exposed veteran without one 
of the listed diseases subject to presumptive service 
connection in the regulation.  See 38 C.F.R. § 3.309(d). 

The regulations also contain a list of radiogenic diseases 
for the purpose of developing claims based on a contention of 
exposure to ionizing radiation.  38 C.F.R. § 3.311(b)(2).  
Section 3.311 provides three threshold criteria for further 
development of such claims: (1) exposure to ionizing 
radiation, (2) subsequent development of a radiogenic 
disease, and (3) manifestation of the disease within the 
regulatory period.  The section further provides that if the 
foregoing requirements have not been met, it shall not be 
determined that a disease has resulted from exposure to 
ionizing radiation under such circumstances.  38 C.F.R. 
§ 3.311(b)(1).  

The probative evidence of record, however, does not show that 
the second and third threshold requirements have been met.  
The veteran has not submitted evidence of that he has been 
diagnosed with a radiogenic disease within the regulatory 
period.  The Board also notes that VA was not under a duty to 
refer the claims for service connection to the Under 
Secretary for Benefits prior to establishing the initial 
threshold requirement of developing the radiogenic disease.  
Wandel v. West, 11 Vet. App. 200, 205 (1998).  Accordingly, 
the Board finds that service connection for the veteran's 
claims is not warranted pursuant to section 3.311 for 
development of claims based on exposure to ionizing 
radiation.

The Board also finds that there is no competent medical or 
scientific evidence linking the veteran's claimed disorders 
to the alleged inservice radiation exposure.  Combee v. 
Brown, 34 F.3d 1039 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d); 
see also 38 C.F.R. § 3.311(b)(3).  The record does not 
contain any competent scientific or medical evidence to show 
that any of the claimed disorders are radiogenic diseases or 
that any of the disorders are related to the veteran’s 
exposure to radiation during service.

The Board further finds that the RO has advised the appellant 
of the evidence necessary to establish a well grounded claim 
in the August 1994 rating decision and January 1996 statement 
of the case.  The appellant has not indicated the existence 
of any evidence that has not already been obtained that would 
well ground his claims.  McKnight v. Gober, 131 F.3d 1483 
(Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), 
aff’d sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).

The veteran's service representative contended in the 
September 1998 written brief that VA has expanded its duty to 
assist and the obligation of VA to fully develop a claim 
before making a decision to claims that are not well 
grounded.  In support of this contention the representative 
cites provisions of the VA Adjudication Procedure Manual M21-
1.  He cites to Part III, paragraph 1.03 and Part VI, 
paragraph 2.10 in support of the proposition that the RO must 
fully develop a claim prior to a determination of whether a 
claim is well grounded.  

The representative further requests the Board to explain why 
the loss of an earlier effective date would not harm the 
appellant in the event that the Board denies the claims as 
well grounded.  The representative also requests the Board to 
explain why the directives of Manual M21-1 do not apply to 
the circumstances of this appeal should it find the claims 
not well grounded.  

Following a review of the record, the Board finds that the RO 
was not under a duty to assist the appellant in developing 
facts pertinent to his claims for service connection prior to 
the submission of a well grounded claim.  

In this regard the U.S. Court of Appeals for the Federal 
Circuit recently held that under 38 U.S.C. § 5107(a), VA has 
a duty to assist only those claimants who have established 
well grounded claims.  Epps v. Gober, 126 F.3d 1464, 1469 
(Fed. Cir. 1997).  The Court of Appeals further stated with 
respect to the doctrine of benefit of the doubt contained in 
38 U.S.C. § 5107(b):


Moreover, the last sentence of § 5107(b) 
makes it clear that a claimant's 
§ 5107(a) burden to submit evidence 
sufficient to establish a "well grounded" 
claim is the claimant's alone. … [T]he 
statute indicates that giving the benefit 
of the doubt to a claimant does not 
relieve the claimant of carrying the 
burden of establishing a well grounded 
claim.  

Id. at 1469.

The Board is bound by the precedent decision by the U.S. 
Court of Appeals for the Federal Circuit in Epps.  In Tobler 
v. Derwinski, 2 Vet. App. 8, 14 (1991), the Court held that a 
decision in that Court, unless or until overturned in an en 
banc decision, or by the U.S. Court of Appeals for the 
Federal Circuit; and, any rulings, interpretations, or 
conclusions of law contained in such a decision are 
authoritative and binding as of the date the decision is 
issued and are to be considered and, when applicable, are to 
be followed by VA agencies of original jurisdiction, the 
Board of Veterans' Appeals, and the Secretary in adjudicating 
and resolving claims.

The regulations provide that in consideration of appeals, the 
Board is bound by applicable statutes, VA regulations, and 
precedent opinions of the General Counsel of the Department 
of Veterans Affairs.  The Board is not bound by Department 
manuals, circulars, or similar administrative issues.  
38 C.F.R. § 19.5.  The Board notes that the Manual M21-1 is 
issued by the VA Chief Benefits Director and according to the 
regulation it does not appear that the Board would be bound 
by such an administrative issue.  But see Cohen v. Brown, 
10 Vet. App. 128, 138 (1997) (holding that certain Manual 
M21-1 provisions are substantive rules which are equivalent 
of VA regulations).  

The statutory guidance on this issue states that the Board 
shall be bound in its decisions by the regulations of the 
department, instructions of the secretary, and the precedent 
opinions of the chief legal officer of the department.  
38 U.S.C.A. § 7103(c).  



The General Counsel of VA has held that the provisions of 
Manual M21-1, Part I, paragraph 50.45 did not constitute 
"instructions of the secretary."  VAOPGCPREC 07-92 (O.G.C. 
Prec. 07-92).

Moreover, the Board is not bound by an administrative 
issuance that is in conflict with binding judicial decisions.  
Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  The 
regulation promulgated regarding VA's duty to provide 
assistance in developing claims tracks the language of the 
statute.  38 C.F.R. § 5107(a); 38 C.F.R. § 3.159.  The U.S. 
Court of Appeals for the Federal Circuit clearly held in Epps 
that the claimant must submit a well grounded claim before 
the duty to assist attaches to the claim.  

Although the Board considered and denied the veteran’s claims 
on the basis they were not well grounded, and the RO denied 
the claims on the merits, the appellant has not been 
prejudiced by the decision.  This is because in assuming that 
the claims were well grounded, the RO accorded the veteran 
greater consideration than his claims, in fact, warranted 
under the circumstances.  Bernard v. Brown, 4 Vet. App. 384 
(1993).  

In light of the implausibility of the veteran’s claims and 
the failure to meet his initial burden in the adjudication 
process, the Board concludes that he has not been prejudiced 
by the decision to deny his appeal.


ORDER

The veteran not having submitted well grounded claims of 
entitlement to service connection for abscesses and boils, a 
skin rash, bilateral hearing loss, tinnitus, residuals of a 
severed left index finger, the appeal is denied.







REMAND

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans’ Appeals or by the United States Court of 
Veterans Appeals 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. 1998) (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.

The veteran’s validly filed notice of disagreement with the 
RO’s August 1994 rating decision which included a denial of 
service connection for genetic insult and dental problems 
placed in appellate status the issues of service connection 
for genetic insult and dental problems.  The RO’s January 
1996 statement of case did not include these two issues.  The 
veteran is entitled to a statement of the case on these two 
issues.  Godfrey v. Brown, 7 Vet. App. 398 (1995).

Accordingly, in view of the foregoing discussion and to 
accord due process of law, the Board is deferring 
adjudication of the issues of entitlement to service 
connection for genetic insult and dental problems pending a 
remand of the case to the RO for further development as 
follows:

The RO should issue a statement of the 
case on the issue of entitlement to 
service connection for genetic insult and 
dental problems.  The required period of 
time for a response should be afforded.

Thereafter, the case should be returned to the Board for 
appellate review, if otherwise in order.  By this remand, the 
Board intimates no opinion as to any final outcome warranted.  
No action is required of the veteran until he is notified by 
the RO.



		
	RONALD R. BOSCH
	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) (1998).
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