Citation Nr: 9902412 Decision Date: 01/28/99 Archive Date: 02/04/99 DOCKET NO. 97-11 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for peripheral neuropathy, secondary to Agent Orange exposure in service. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran’s active military service extended from October 1972 to April 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. That rating decision denied service connection for peripheral neuropathy, secondary to Agent Orange exposure in service. In a January 1996 rating decision, the veteran was determined to be incompetent for purposes of managing VA payments. Benefits were thereafter awarded to his wife. Subsequent to their divorce, his sister was appointed custodian. VA has recently been notified by the appellant that she has legally changed her last name. Initially, the Board notes some procedural irregularities in the history of the veteran's claim which must be addressed. Service connection for peripheral neuropathy secondary to exposure to Agent Orange in service, and on a direct basis, was denied in a May 1994 rating decision. The veteran was notified of this decision and responded with a June 1994 letter which stated in part, “I got the Agent Orange on me while stationed at the Sea Bee Base, Gulfport . . . I have read Agent Orange bulletins and they listed peripheral neuropathy . . . I sure do appeal this decision. . . .” Although this appears to satisfy the requirements for a timely filed notice of disagreement, at least with regard to the issue of service connection for peripheral neuropathy due to exposure to Agent Orange, no statement of the case was issued by the RO. See 38 C.F.R. § 20.201; Rowell v. Principi, 4 Vet. App. 9, 14 (1993). This may be because the veteran's letter also refers to two other unrelated claims which were already on appeal and the subject of a September 1994 Board decision. Regardless, with a timely filed notice of disagreement, and no statement of the case issued, the May 1994 decision was never final with regard to the issue of service connection for peripheral neuropathy due to Agent Orange exposure. See 38 U.S.C.A. § 7105(c) (West 1991). In September 1995, the veteran wrote that he wished to reopen his claim for peripheral neuropathy secondary to Agent Orange exposure. The RO erroneously responded that his claim had been previously denied and was now final “because you did not disagree.” After repeating his claims several times, the RO decided the issue of service connection for peripheral neuropathy as a result of exposure to Agent Orange in a December 1996 decision. However, inconsistent with its own earlier correspondence, the RO treated this as an original claim and decided the issue on the merits, although observing that “[s]ervice connection for peripheral neuropathy on a direct basis has been previously denied . . .” This time, the veteran through his custodian, filed a notice of disagreement which was accepted, and a supplemental statement of the case was issued. Because the RO decided this claim on the merits rather than applying a new and material analysis to reopen the claim, and because the prior decision was never actually final, the Board determines that there is no prejudice to the veteran in proceeding to the merits of this decision, particularly since the appellant and veteran have been arguing on the merits all along. See 38 C.F.R. § 3.156 (1998) (requirement of submitting new and material evidence to reopen a claim); See generally Bernard v. Brown, 4 Vet. App. 384 (1993). FINDINGS OF FACT 1. The service records do not show service in the Republic of Vietnam; the veteran is not presumed to have been exposed to Agent Orange in service. 2. No competent medical evidence has been presented of a nexus between the veteran's peripheral neuropathy and exposure to Agent Orange in service. 3. The appellant has not presented a plausible claim for service connection for peripheral neuropathy secondary to Agent Orange exposure in service. CONCLUSION OF LAW The appellant has not presented a well grounded claim for service connection for peripheral neuropathy secondary to Agent Orange exposure in service, and therefore there is no statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. §§ 101(16), 1110, 1116, 5107(a) (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters. The law provides that “a person who submits a claim for benefits under a law administered by the Secretary shall have 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) (West 1991). Establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service- connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a “well grounded” claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) 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 (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998). In the case of an Agent Orange related claim, when a veteran served in the Republic of Vietnam during the Vietnam era, competent medical evidence of the existence of a current presumptive disease with an open-ended presumptive period of time for service connection is sufficient to render the claim for service connection for the presumptive disease well grounded. Brock v. Brown, 10 Vet. App. 155, 162 (1997). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to an herbicide agent (Agent Orange), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1998). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) (1998) are met, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcomas. 38 U.S.C.A. § 1116 (West 1991 & Supp. 1998); 38 C.F.R. § 3.309(e) (1998). Chloracne, or other acneform disease, as well as acute and subacute peripheral neuropathy may be presumed to have been incurred during active military service as a result of exposure to Agent Orange if it is manifest to a degree of 10 percent within the first year after the last date on which the veteran was exposed to Agent Orange during active service. 38 C.F.R. § 3.307(a)(6)(ii) (1998). The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. Note 2 to 38 C.F.R. § 3.309(e) (1998). If the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1998) are also not satisfied, then the veteran’s claim shall fail. 38 U.S.C.A. § 1113 (West 1991 & Supp. 1998); 38 C.F.R. § 3.307(d) (1998). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 61 Fed.Reg. 414421 (1996). II. Factual Background. In this case, the appellant is alleging that the veteran has peripheral neuropathy as a result of exposure to Agent Orange while stationed at the Sea Bee Base in Gulfport, Mississippi. Specifically, she alleges that he was exposed to containers of Agent Orange which were stored on the base. From a November 1992 statement, the veteran wrote: I was around some chemicals at different times. I remember going there and getting wet at least twice. I was told there was no harm or danger. I would just shower and go on with it. As time passed I was told that Agent Orange was stored on the base there. I never had any trouble [until] years later. I asked a doctor at the VA [hospital] one time and he said it might be because of the chemicals. Despite several attempts to obtain the veteran's service medical records, complete records have not been associated with the claims file. Several requests of the National Personnel Records Center have resulted in only microfiche records of personnel records. The veteran was requested to submit any medical records from service that he might have in his possession. He submitted copies of records dating from December 1975 to April 1978 showing a viral syndrome in December 1975 and a trauma to the right knee in December 1976, but no indication of peripheral neuropathy. In June 1990, the veteran was admitted to a VA hospital with a complaint of constipation. He was diagnosed with macrocytic megaloblastic anemia consistent with B-12 deficiency of the bone marrow. He was discharged with instructions to continue with his B-12 injections. On VA examination in April 1991, the veteran complained that his legs were weak and tended to be numb since his anemia. In a June 1992 examination, the diagnoses included possible lower extremity peripheral neuropathy. A March 1992 medical certificate shows a diagnosis of peripheral neuropathy secondary to megaloblastic anemia. In a January 1993 general VA examination, the veteran complained of numbness and tingling in the lower extremities below the knees. He stated that he was taking monthly B-12 injections. Examination revealed a decreased sensation to touch in both lower extremities below the knees. The diagnoses included B-12 deficiency with peripheral neuropathy. In February 1993, the veteran was provided a VA peripheral nerves examination. Although the report was of examination is titled “peripheral nerves” it appears that he was actually given an orthopedic examination. He gave a history of numbness and tingling in both lower extremities, but said that he had a history of macrocytic megaloblastic anemia which he had been told would cause numbness and tingling in the lower extremities. No diagnosis was rendered, the examiner referring to a report of a neurologist for neurological findings. No separate neurological report appears in the claims file contemporaneous with this examination; however, it appears that because of the comprehensive nature of the general VA examination, the report of which was written following the neurological examination, that the examiner may have deferred to the findings of the general examiner with regard to the peripheral nerves. In a May 1994 decision, the veteran was denied service connection for peripheral neuropathy secondary to exposure to Agent Orange in service on both a presumptive and a direct basis. In September 1995, he attempted to reopen this claim. The RO responded that it had previously denied this claim, and that the veteran would have to submit new evidence to reopen it. In July 1995, the veteran resubmitted his claim for service connection for peripheral neuropathy secondary to Agent Orange exposure, writing that while he was stationed at the Sea Bee Base in Gulfport his job included securing the area during hurricanes, to include securing barrels containing Agent Orange. He subsequently submitted two lay statements, one which stated simply that the writer had served with the veteran in 1973 in Gulfport, and another from a woman who visited the veteran regularly from 1973 to 1978 and related the veteran's history of exposure to chemicals in barrels as it had been told to her. In December 1996, the veteran was again denied service connection for peripheral neuropathy secondary to Agent Orange exposure. He appealed this decision to the Board through his sister acting as his custodian. III. Analysis. Although the veteran had service during the Vietnam era, the evidence does not show, and the veteran does not contend, that he had service in the Republic of Vietnam. As such, the veteran may not be presumed to have been exposed to Agent Orange in service and is not entitled to the presumptions for veterans so exposed. See 38 C.F.R. § 3.307, 3.309 (1998). The Board notes that even if the veteran had service in the Republic of Vietnam and was presumed exposed to Agent Orange, the law limits application of the presumption to peripheral neuropathy which is transient, appears within weeks or months of exposure to an herbicide agent, is manifest to a compensable degree within one year after exposure, and resolves within two years of the date of onset. 38 C.F.R. § 3.307 (a)(6)(ii), Note 2 to 38 C.F.R. § 3.309. Even if, under this scenario, his current peripheral neuropathy was shown to have existed during this time, the fact that it had not resolved would have negated application of the presumption. Notwithstanding the foregoing, 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 Stat. 2724, 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 (Fed.Cir. 1994). However, the United States Court of Veterans Appeals has held that where the issue involves medical causation, competent medical evidence that shows that the claim is plausible or possible is required to set forth a well-grounded claim. Caluza v. Brown, 7 Vet. App. 498 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran has specifically alleged that he was exposed to Agent Orange while on active service assigned to duty at the Sea Bee Base in Gulfport, Mississippi. Service personnel records in the claims file show that the veteran performed primarily administrative duties. Even assuming that he was exposed to Agent Orange in service, there is no medical evidence of a link between his diagnosis of peripheral neuropathy and any such exposure. The veteran has presented no competent medical evidence of a link between his peripheral neuropathy and any exposure to Agent Orange. Although the veteran has stated that his peripheral neuropathy was related to Agent Orange exposure, the veteran statements are not competent evidence of the etiology of his peripheral neuropathy. See Espiritu, 2 Vet. App. at 495; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Furthermore, although he wrote that he had once asked a VA doctor about his peripheral neuropathy and was told that “it might be because of the chemicals,” it has been held that a statement from a veteran as to what a doctor told him, is insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet. App. 4 (1993), See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this regard it should also be noted that in Tirpak v. Derwinski, 2 Vet. App. 609 (1992) it was held that when a doctor’s opinion is expressed in terms of “may or may not” is not sufficient to establish a well-grounded claim. The medical evidence clearly relates the veteran's peripheral neuropathy to his diagnosis of megaloblastic anemia. As such, the veteran has not met the requirement of providing competent medical evidence of a nexus, or link, between his inservice exposure to Agent Orange and his peripheral neuropathy. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). See also Dean v. Brown, 8 Vet. App. 449, 455 (1995) The Board notes that the veteran has already been denied service connection for peripheral neuropathy on a direct basis, other than secondary to Agent Orange exposure, in a prior decision. See Introduction, supra. The Board has thoroughly reviewed the claims file, but finds no evidence of a plausible claim for peripheral neuropathy due to Agent Orange exposure in service. Since the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims are well grounded, they must be denied. See Boeck v. Brown, 6 Vet. App. 14, 17 (1993) (if a claim is not well- grounded, the Board does not have jurisdiction to adjudicate it). Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) 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, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claims well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). Regulations affording the veteran the benefit of the doubt, as provided by 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102, do not apply where the appellant has not submitted a well- grounded claim. Holmes v. Brown, 10 Vet. App. 38 (1997). (CONTINUED ON NEXT PAGE) ORDER Because it is not well grounded, the veteran's claim for service connection for peripheral neuropathy, secondary to Agent Orange exposure in service is denied. BETTINA S. CALLAWAY 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -