Citation Nr: 9900616 Decision Date: 01/12/99 Archive Date: 01/19/99 DOCKET NO. 97-02 650 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for upper respiratory disorder, to include chronic laryngitis. 2. Entitlement to service connection for fainting and passing out. 3. Entitlement to service connection for polyps in the colon, to include diverticulosis. 4. Entitlement to service connection for porphyria cutanea tarda. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from January 1968 to September 1969. This case comes before the Board of Veterans’ Appeals (the Board) on appeal from an October 1996 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for upper respiratory disorder, fainting and passing out, polyps in colon, and porphyria cutanea tarda, each as secondary to exposure to Agent Orange. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he was exposed to Agent Orange in service. He believes that he has an upper respiratory infection which is a result of his exposure to Agent Orange in Vietnam. He states that he has fainting spells and will pass out, which he attributes to Agent Orange exposure. He states that the polyps in his colon are related to Agent Orange exposure. 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 appellant’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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims for entitlement to service connection for upper respiratory disorder, to include chronic laryngitis; fainting and passing out, and polyps in the colon, to include diverticulosis, are well grounded. FINDINGS OF FACT 1. Competent evidence of a nexus between an upper respiratory disorder, to include chronic laryngitis, and service or that such disability is related to exposure to Agent Orange is not of record. 2. Fainting or passing out is not a disability for VA purposes. 3. Competent evidence of a nexus between polyps in the colon, to include diverticulosis, and service or that such disability is related to exposure to Agent Orange is not of record. CONCLUSIONS OF LAW 1. The claim for service connection for upper respiratory disorder, to include chronic laryngitis, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for fainting and passing out is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for polyps in the colon is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1998). In making a claim for service connection, the appellant has 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). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for service connection generally requires medical evidence of a current disability; 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, a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995) aff’d per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1996); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Establishing direct service connection for a disability that was not clearly present in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Moreover, establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection cited above and of sufficient weight to make the claim plausible and capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy, 1 Vet. App. at 81. The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit, 5 Vet. App. at 93. The appellant has not claimed that upper respiratory disorder, fainting and passing out, and polyps in the colon arose under combat situation. Thus, entitlement to application of 38 U.S.C.A. § 1154(b) is not warranted. Service medical records reveal that the appellant was seen in April 1969 with complaints of a sinus cold and slight cough, which he stated had been present for one and one-half months. The physical examination was negative. The impression was upper respiratory infection. That same month, he was seen with complaints of dizziness and lightheadedness and “black outs,” which he stated had occurred 10 to 15 times per day for the past three days. The examiner noted that the appellant had received smallpox, plague, and cholera vaccinations three days prior. Examination of the head, eyes, ears, nose, and throat was negative. The lungs were clear to percussion and auscultation. His heart had regular rhythm and no murmur. His abdomen was soft and nontender. The impression was that the appellant probably had a minor reaction to immunizations. At separation, clinical evaluations of the appellant’s lungs and chest, and endocrine system were normal. In the report of medical history completed by the appellant at that time, he stated “yes” to ever having or having now dizziness or fainting spells, chronic or frequent colds, and chronic cough. An April 1996 VA outpatient treatment report reveals that the appellant was diagnosed with a polyp in his colon. In June 1996, the appellant complained of episodes of flushing, skin turning red, wheezing, nausea, and sweating. The provisional diagnosis was questionable carcinoid, medullary carcinoma of the thyroid, thyroid problem, and questionable gastroesophageal reflux. The examiner noted that results were pending. In July 1996, he was seen for gastroesophageal reflux or other laryngeal abnormality. The appellant reported a history of hoarseness for the last six months. He denied dysphagia or sore throat. There had been no recent upper respiratory infection. He reported nasal congestion in the mornings. He denied heartburn and indigestion. Examination of the ears was normal. He had clear rhinorrhea. Examination of the mouth and pharynx was negative. The larynx had slight erythema. The impression was chronic laryngitis. The examiner noted that there was no evidence of gastroesophageal reflux disease. In an August 1996 treatment report, the VA examiner stated that the appellant was following up on an Agent Orange registry examination, which was performed in June 1996. The problems identified were episodic attacks of flushing, wheezing, nausea, hoarseness, and blood in his stools. The VA examiner stated that a June 1996 endocrinology work-up revealed no diagnosis. The VA examiner noted that a July 1996 flexible sigmoidoscopy revealed at least one polyp. The VA examiner stated that an examination in July 1996 revealed chronic laryngitis and no evidence of gastroesophageal reflux disease. Laboratory data results were consistent with mild or treated porphyria cutanea tarda. The diagnoses were colon polyp, diverticulosis, chronic laryngitis, and episodic flushing and wheezing attacks with elevation of uroporphyrins, consistent with porphyria cutanea tarda. The appellant had an RO hearing in June 1997. He stated that he had been given a diagnosis of an upper respiratory infection, but was still undergoing testing. He stated that he had episodes of difficulty breathing. He noted that such problem had not been attributed to a common denominator. He stated that when the coughing would begin that it would last for 20 minutes to an hour. He reported that this had started in 1992. The appellant stated that the fainting and passing out began in 1992. He stated that no specific incident would cause the fainting, but that the fainting did not occur unless he had the respiratory problems. When asked if the polyps on his colon had occurred within one year of service, the appellant stated that if they had, he had no knowledge of it. He stated that the polyps were first detected within the last year. The appellant stated that he was a cook in Vietnam and that he was in the perimeter of where they sprayed Agent Orange. The appellant reported that he had the respiratory problems twice a month and stated that such would happen when he was sleeping. The appellant underwent a VA examination in August 1997. The appellant reported his episodes of dyspnea at night and feeling warm from his waist up to his neck. He stated that he would develop facial puffiness and shortness of breath. Drinking cold liquid would seem to resolve the problem. He reported that he underwent allergy testing, but that nothing was identified. He reported no chest pain. The appellant stated that he was a long-term smoker of a pack a day for the last 35 years. Upon physical examination, the appellant’s vital signs were normal. Examination of the head, eyes, ears, nose, and throat was unremarkable. Neck was supple. There was no jugular venous distention or lymphadenopathy. Lungs were clear to auscultation and percussion. Heart had a regular rate and rhythm with no murmurs, rubs, or gallops. S1 and S2 were normal. Abdomen was soft, nontender, nondistended, and there were positive bowel sounds. Extremities were without clubbing, cyanosis, or edema. Chest x-rays revealed hyperinflated lung with increased PA diameter and evidence of emphysematous changes. Pulmonary function tests showed an FEV-1 of 3.75, 88 percent predicted; FVC of 5.24, 97 percent of predicted with a ratio of 71, low volume was normal. The impression was normal lung examination. The VA examiner stated that the appellant’s dyspnea could not be contributed to pulmonary disease. At a separate examination in August 1997, the appellant reported that he had passing out episodes that started in 1992. He reported that the episodes occurred usually at night. He described his skin turning red and found it difficult to breathe and that occasionally, he will pass out. He stated that these episodes had been witnessed by his sister. The episodes would not entail shaking, bowel or bladder incontinence, or tongue biting. He stated that they happened two to three times per month. Upon physical examination, he was awake, alert, and oriented to person, place, and time. Language was intact. Recent and remote memory were intact. He followed simple and complex commands. Cranial nerves II through XII were intact. Motor strength was 5/5 in the upper extremities and lower extremities bilaterally. Sensory was intact bilaterally to light touch and pinprick. Coordination, finger-to-nose, rapid alternating movements, and heel-to-shin were all intact bilaterally. Deep tendon reflexes were equal and symmetrical. Gait was stable. Both toes were downgoing. The VA examiner stated that there were no tics or choreiform type movements. The diagnosis was that fainting and passing out were not typical for a neurologic disease. In an August 1997 general medical examination report, the VA examiner gave the appellant a diagnosis of gastroesophageal reflux symptoms, but noted that the fainting and passing out were not considered to be a part of that diagnosis. The appellant had reported an episode where he passed out in front of his sister and regained consciousness a few seconds later. The VA examiner stated that the etiology of the single episode of syncope was unknown and was not judged in any way to be associated with Agent Orange exposure. The appellant underwent an examination of his intestines in August 1997. The VA examiner noted that the appellant felt that the colon polyps were related to exposure to Agent Orange. The VA examiner stated that the appellant had evidence of mild anemia, but no evidence of malnutrition. There was no nausea, diarrhea and/or constipation, and no bowel or abdominal disturbances. The VA examiner noted that an August 1996 colonoscopy revealed diverticulosis, polyp at 25 centimeters, small polyp, which was a hyperplastic polyp with adenomatous changes. The VA examiner stated that the appellant had an air contrast barium in December 1996 which revealed diverticulosis of the entire colon. The diagnoses were history of colon polyps and diverticulosis. As to the diagnosis of history of colon polyps, the VA examiner stated that they were not related to Agent Orange exposure. As to the diagnosis of diverticulosis, the VA examiner stated that it was active and the result of the appellant’s dietary habits and not due to Agent Orange exposure. I. Upper respiratory infection The claim for upper respiratory infection, to include chronic laryngitis is not well grounded. The appellant has alleged that he has an upper respiratory infection which is related to his exposure to Agent Orange. He was diagnosed with upper respiratory infection in service and has been diagnosed with chronic laryngitis following service. The first diagnosis of chronic laryngitis was in 1996, approximately 26 years following service. When examined in August 1997, he had a normal lung examination, and the VA examiner stated that the appellant’s dyspnea could not be contributed to pulmonary disease. Regardless of such, he was diagnosed with chronic laryngitis in 1996. The appellant has not brought forth evidence of a positive relationship between the diagnosis of chronic laryngitis and service nor has he brought forth evidence of a positive relationship between chronic laryngitis and Agent Orange exposure. It is important to note that the appellant has not claimed that he had laryngitis since service and that when he was seen in 1996, he reported that there was only a six-month history of laryngitis. This constitutes negative evidence that chronic laryngitis was incurred in service. However, 38 C.F.R. § 3.307(a)(6) (1998) could provide presumptive service connection for conditions resulting from exposure to Agent Orange, but only for those conditions explicitly demonstrated to be associated with exposure to certain herbicidal agents. Chronic laryngitis is not a condition for which presumptive service connection is permitted under the regulation. Thus, the appellant has failed to submit competent medical evidence of a nexus between the current diagnosis of chronic laryngitis and a disease or injury in service or to exposure to Agent Orange, and, therefore, the claim is not well grounded. See Caluza, supra. Although the appellant has stated that he believes that his problems are related to Agent Orange, he is a lay person and his opinion is not competent. See Layno, 6 Vet. App. at 470; Espiritu, 2 Vet. App. at 494. The appellant’s own, unsupported opinion does not give rise to a well-grounded claim. II. Fainting and passing out The appellant’s claim for fainting and passing out is not well grounded. In April 1969, the appellant was seen with complaints of dizziness, lightheadedness, and blacking out. The examiner determined that such symptoms were a result of immunizations he had been given three days prior. The appellant underwent an examination in August 1997. He reported an episode when he passed out in front of his sister and lost consciousness for a few seconds. A VA examiner stated that the appellant’s fainting and passing out were not typical for a neurologic disease. In a separate examination report, the VA examiner stated that the etiology of the single episode of syncope was unknown and was not judged in any way to be associated with Agent Orange exposure. Such is negative evidence for a claim for service connection for fainting and passing out as a result of exposure to Agent Orange. However, it must be noted that fainting and passing out are not conditions for which service connection may be granted. Service connection is warranted for a “[d]isability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty . . .” 38 U.S.C.A. §§ 1110, 1131. The inservice notation of the fainting was related to the appellant’s receiving vaccinations. Since service, there is no evidence of continuity of symptomatology and no competent professional has related the remote post-service complaints to the inservice events. The current notation of fainting and/or passing out does not establish that there is a disability resulting from an injury or a disease. See ibid. Absent a disease or injury, service connection may not be granted and thus the claim for service connection for fainting and passing out is not well grounded and must be denied. Additionally, under 38 C.F.R. § 3.307(a)(6), fainting and passing out are not conditions explicitly demonstrated to be associated with exposure to certain herbicidal agents. Stated differently, the Board is presented with a remote post service complaint of passing out or fainting that has not been attributed to a disease or an injury, any incident of service or exposure to Agent Orange. Based on such facts, the claim is not well grounded. III. Polyps in the colon The claim for polyps in the colon is not well grounded. At the RO hearing, the appellant noted that if he had polyps in his colon in service, that he was unaware of it. His contention is that the polyps were due to exposure to Agent Orange. The appellant has also been given a diagnosis of diverticulosis. The appellant has not brought forth evidence of a positive relationship between the diagnosis of polyps in his colon and diverticulosis and service or a positive relationship between the diagnoses and exposure Agent Orange. In fact, there is negative evidence. When examined in August 1997, the VA examiner stated that the polyps were not related to Agent Orange exposure and that the diverticulosis was the result of the appellant’s dietary habits and not due to Agent Orange exposure. Additionally, under 38 C.F.R. § 3.307(a)(6), polyps of the colon and diverticulosis are not conditions explicitly demonstrated to be associated with exposure to certain herbicidal agents. Thus, the appellant has failed to submit competent medical evidence of a nexus between the current diagnoses of polyps in the colon and diverticulosis and a disease or injury in service or to exposure to Agent Orange, and, therefore, the claim is not well grounded. See Caluza, supra. Although the appellant has stated that he believes that his polyps are related to Agent Orange, he is a lay person and his opinion is not competent. See Layno, 6 Vet. App. at 470; Espiritu, 2 Vet. App. at 494. The appellant’s own, unsupported opinion does not give rise to a well-grounded claim. IV. General duty Although the VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim when it is determined to be not well grounded, it may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) 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 (1995). Here, VA fulfilled its obligation under section 5103(a) by issuing a statement of the case in November 1996 and two supplemental statements of the case in October 1997. In this respect, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). See also Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches only where there is an incomplete application which references other known and existing evidence that pertains to the claim under consideration); Wood v. Derwinski, 1 Vet. App. 190 (1991) (VA’s duty is just what it states, a duty to assist, not a duty to prove a claim. The Board notes that the appellant’s representative, in the informal hearing presentation, stated that if the Board found the current claims not well grounded that the Board should determine whether the RO followed the M21-1 substantive rules requiring that full development of all claims be undertaken prior to the well grounded determination. See ADJUDICATION PROCEDURE MANUAL M21-1 (M21-1), Part III, 1.03(a), Part VI, 2.10(f). First, the Board notes that it is bound by the applicable statutes and regulations pertaining to VA and precedential opinions of the Office of the General Counsel of VA. 38 C.F.R. § 19.5 (1998). However, the Board is specifically not bound by VA manuals, circulars, or other administrative issues. Id. Moreover, the cited provisions of M21-1 have not been promulgated pursuant to the regulatory requirements of 38 C.F.R. § 1.12 (1998). See also 61 Fed. Reg. 11309 (1996) (deleting 38 C.F.R. § 1.551 (1995)). Second, the cited provisions of M21-1 that require full development of a claim during the pendency of a determination on the threshold issue of well-groundedness do not stand for the proposition that the duty to assist extends to claims that are not well grounded. Third, VA has complied with any policy implicit or explicit in M21-1 regarding development of non-well-grounded claims by attempting to obtain the evidence relied upon by the appellant and by informing him of the evidence needed. Neither the appellant nor his representative have identified one piece of evidence that VA should have obtained but did not. Additionally, neither has pointed to any development that should have been done but was not. The Board finds that the RO’s development of the evidence in this case was as full and thorough and that the RO has sought all available avenues of obtaining evidence on the appellant’s behalf. Although the RO did not specifically state that it denied the appellant’s service connection claims for upper respiratory infection, to include chronic laryngitis; fainting and passing out; and polyps in the colon, to include diverticulosis, on the basis that they were not well grounded, the Board concludes that this was harmless. See Edenfield v. Brown, 8 Vet. App. 384, 390 (1995) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). The Board acknowledges that it has decided the one of the issues on appeal on a different legal basis than the RO did. When the Board, in a decision, addresses a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, the Board concludes that the appellant has not been prejudiced by this decision. It has considered the same law and regulations and merely concludes that the appellant did not meet the initial threshold evidentiary requirements of a well-grounded claim under the standards set forth in Caluza, supra. The result is the same. ORDER Service connection for upper respiratory disorder, to include chronic laryngitis; fainting and passing out; and polyps in the colon, to include diverticulosis, is denied. REMAND The appellant has a diagnosis of porphyria cutanea tarda. Porphyria cutanea tarda is one of the conditions explicitly demonstrated to be associated with exposure to certain herbicidal agents. See 38 C.F.R. § 3.307(a)(6). More importantly, the file contains a provisional diagnosis of “PCT (Agent Orange induced).” The notation raises a well grounded claim not because of presumptive service connection but rather the provisions of 38 C.F.R. § 3.303(d) (1998). The Board finds that a medical opinion is necessary as to the etiology of the appellant’s diagnosis of porphyria cutanea tarda. Accordingly, the case is hereby REMANDED to the RO for the following action: 1. The RO should schedule the appellant for a VA examination for to determine the etiology of the diagnosis of porphyria cutanea tarda. The examiner should be provided with the appellant’s claims folder and must review the veteran’s medical history prior to conducting the examination. The VA examiner is to state whether it is as at least likely as not that the porphyria cutanea tarda is a result of exposure to Agent Orange. The VA examiner should state the basis for his/her determination. The examination report should set forth all positive and negative findings in a clear, comprehensive, and legible manner. 3. In connection with the above-cited development, the RO is advised to ensure compliance with examination reporting requirements. Pursuant to 38 C.F.R. § 3.655 (1998), when the claimant without good cause fails to report for an examination in connection with a claim for service connection, other than an original claim, the claim will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. Reference is made to M21-1, Part IV, paragraph 28.09(b)(3). The regional office must comply with all notification requirements regarding the duty to report and the failure to report for examination. This serves as notification of the regulation. The case should be returned to the Board after compliance with all requisite appellate procedures. The appellant is free to submit additional evidence or argument on remand. 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 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. H. N. SCHWARTZ 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 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). - 2 -