Citation Nr: 9912690	
Decision Date: 05/10/99    Archive Date: 05/21/99

DOCKET NO.  97-17 563	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Columbia, South Carolina




THE ISSUE

Entitlement to service connection for acute peripheral 
neuropathy due to exposure to herbicides.




REPRESENTATION

Appellant represented by:	The American Legion



INTRODUCTION

The veteran served on active duty from June 1951 to March 
1955, and from September 1957 to January 1974.  His active 
duty included service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 1997 rating decision that 
denied service connection for acute peripheral neuropathy due 
to exposure to herbicides.


FINDING OF FACT

No competent medical evidence has been received that tends to 
show that the veteran ever experienced acute peripheral 
neuropathy.


CONCLUSION OF LAW

The veteran's claim of service connection for acute 
peripheral neuropathy is not well grounded.  38 U.S.C.A. 
§§ 1110, 1116, 1131, 5107 (West 1991 & Supp. 1998); 38 C.F.R. 
§§ 3.303, 3.307, 3.309 (1998).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The veteran contends that he has a transient or acute 
peripheral neuropathy which can be attributed to in-service 
exposure to herbicides.  He asserts that the peripheral 
neuropathy he has experienced has not been explained by 
medical practitioners and consequently is best explained by 
his exposure to herbicides during his military service in the 
Republic of Vietnam.

Service connection is warranted where the evidence of record 
establishes that a particular injury or disease resulting in 
disability was incurred in the line of duty in the active 
military service or, if pre-existing such service, was 
aggravated thereby.  38 U.S.C.A. §§ 1110, 1131 (West 1991); 
38 C.F.R. § 3.303(a) (1998).  Service connection is also 
warranted where the evidence shows that a chronic disability 
or disorder has been caused or aggravated by an already 
service-connected disability.  38 C.F.R. § 3.310 (1998); 
Allen v. Brown, 7 Vet. App. 439 (1995).  When disease is 
shown as chronic in service, or within a presumptive period 
so as to permit a finding of service connection, subsequent 
manifestations of the same chronic disease at any later date 
are service connected unless clearly attributable to 
intercurrent causes.  38 C.F.R. § 3.303(b) (1998).

A person who submits a claim for VA benefits has the burden 
of submitting evidence sufficient to justify a belief by a 
fair and impartial individual that the claim is well 
grounded.  Only if the claimant meets this burden does VA 
have the duty to assist him in developing the facts pertinent 
to his claim.  38 U.S.C.A. § 5107(a) (West 1991); Epps v. 
Gober, 126 F.3d 1464 (Fed. Cir. 1997).  If the claimant does 
not meet this initial burden, the appeal must fail because, 
in the absence of evidence sufficient to make the claim well 
grounded, the Board does not have jurisdiction to adjudicate 
the claim.  Boeck v. Brown, 6 Vet. App. 14, 17 (1993).

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 38 U.S.C.A. § 5107(a).  To be well 
grounded, however, a claim must be accompanied by evidence 
that suggests more than a purely speculative basis for 
granting entitlement to the requested benefits.  Dixon v. 
Derwinski, 3 Vet. App. 261, 262-63 (1992).  Evidentiary 
assertions accompanying a claim for VA benefits must be 
accepted as true for purposes of determining whether the 
claim is well grounded, unless the evidentiary assertion is 
inherently incredible or the fact asserted is beyond the 
competence of the person making the assertion. Espiritu v. 
Derwinski, 2 Vet. App. 492 (1992).  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.  Murphy, 1 Vet. App. at 
81.  A claimant cannot meet this burden merely by presenting 
lay testimony, because lay persons are not competent to offer 
medical opinions.  Espiritu, 2 Vet. App. at 495.

The United States Court of Appeals for Veterans Claims (known 
as the United States Court of Veterans Appeals prior to March 
1, 1999) (Court) has held that competent evidence pertaining 
to each of three elements must be submitted in order make a 
claim of service connection well grounded.  There must be 
competent (medical) evidence of a current disability; 
competent (lay or medical) evidence of incurrence or 
aggravation of disease or injury in service; and competent 
(medical) evidence of a nexus, or link, between the in-
service injury or disease and the current disability.  This 
third element may be established by the use of statutory 
presumptions.  38 U.S.C.A. § 1112 (West 1991 & Supp. 1998); 
38 C.F.R. §§ 3.307, 3.309 (1998); Caluza v. Brown, 7 Vet. 
App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. 
Cir. 1996) (table).

With regard to herbicide exposure (including Agent Orange), 
VA laws and regulations provide that a veteran who, during 
active military, naval, or air service, served in the 
Republic of Vietnam during the period beginning on January 9, 
1962, and ending on May 7, 1975, and has a disease listed at 
38 C.F.R. § 3.309(e), shall be presumed to have been exposed 
to an herbicide agent, unless there is affirmative evidence 
to the contrary.  38 U.S.C.A. § 1116(a)(3) (West Supp. 1998); 
38 C.F.R. § 3.307(a)(6)(iii) (1998).  The last date on which 
such a veteran shall be presumed to have been exposed to an 
herbicide agent shall be the last date on which he or she 
served in the Republic of Vietnam during the period beginning 
on January 9, 1962, and ending on May 7, 1975.  38 C.F.R. 
§ 3.307(a)(6)(iii) (1998).  "Service in the Republic of 
Vietnam" includes service in the waters offshore and service 
in other locations if the conditions of service involved duty 
or visitation in the Republic of Vietnam.  Id.

If a veteran was exposed to an herbicide agent during active 
military, naval, or air service, served in the Republic of 
Vietnam during the period beginning on January 9, 1962, and 
ending on May 7, 1975, the following diseases shall be 
service-connected if the requirements of 38 U.S.C.A. § 1116 
and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there 
is no record of such disease during service, provided further 
that the rebuttable presumption provisions of 38 U.S.C.A. 
§ 1113 and 38 C.F.R. § 3.307(d) are also satisfied:  
chloracne or other acneform disease consistent with 
chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's 
lymphoma; acute and subacute peripheral neuropathy; porphyria 
cutanea tarda; prostate cancer; respiratory cancers (cancer 
of the lung, bronchus, larynx, or trachea); and soft-tissue 
sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's 
sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e) (1998).  The 
diseases listed at 38 C.F.R. § 3.309(e) shall have become 
manifest to a degree of 10 percent or more at any time after 
service, except that chloracne or other acneform disease 
consistent with chloracne, porphyria cutanea tarda, or acute 
and subacute peripheral neuropathy shall have become manifest 
to a degree of 10 percent or more within a year, and 
respiratory cancers within 30 years, after the last date on 
which the veteran was exposed to an herbicide agent during 
active military, naval, or air service.  38 C.F.R. 
§ 3.307(a)(6)(ii) (1998).

The Secretary of VA has determined that there is no positive 
association between exposure to herbicides and any other 
condition for which the Secretary has not specifically 
determined that a presumption of service connection is 
warranted.  See Diseases Not Associated With Exposure to 
Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996).  
Nevertheless, the United States Court of Appeals for the 
Federal Circuit has held that the Veteran's Dioxin and 
Radiation Exposure Compensation Standards (Radiation 
Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 
2727-29 (1984), does not preclude a claimant from 
establishing service connection with proof of direct 
causation, a task "which includes the difficult burden of 
tracing causation to a condition or event during service."  
Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In the present case, the Board finds that the claim of 
entitlement to service connection for acute peripheral 
neuropathy due to exposure to herbicides is not well 
grounded.  The presumptive provisions of 38 U.S.C.A. § 1116 
and 38 C.F.R. § 3.309(e) cannot be relied upon by the veteran 
to establish service connection because no competent medical 
evidence has been submitted to show that the veteran ever 
experienced acute or subacute peripheral neuropathy, which 
has been defined as transient peripheral neuropathy that 
appears within weeks or months of exposure to a herbicide 
agent and resolves within two years of the date of onset.  
38 C.F.R. § 3.309(e).  

The available record shows that the veteran has at times been 
seen for numbness and weakness, as early as 1983, but acute 
peripheral neuropathy as defined by regulation has not been 
shown.  In 1990, the veteran was evaluated for specific 
complaints of numbness in the left thigh area, and a December 
1991 record indicates that the veteran's history and 
electromyographic test results suggested mild peripheral 
neuropathy.  However, this occurred many years after the 
veteran's separation from service.  While it may have been 
transient in nature, it did not occur within the time 
established by § 3.309(e).  Consequently, the Board concludes 
that no evidence has been presented to suggest that the 
veteran ever had acute or subacute peripheral neuropathy.  In 
the absence of competent evidence which demonstrates that the 
veteran has a disorder listed at 38 C.F.R. § 3.309(e), or 
which otherwise links a current peripheral neuropathy to 
service, his claim cannot properly be considered well 
grounded.  See, e.g., Brock v. Brown, 10 Vet. App. 155 
(1997).  The claim must therefore be denied.

It has also been contended on the veteran's behalf that the 
Board should determine whether the RO complied with M21-1, 
Part III,  1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, 
Part VI,  2.10(f) (Change 48) (Aug. 5, 1996).  The 
provisions of M21-1 Part VI,  2.10(f) provide that "the 
duty to assist will prevail while development is 
undertaken."  A careful reading of this provision clearly 
shows the initiation of this "development" is predicated on 
the claim being "potentially plausible on a factual basis."  
Essentially, "potentially plausible on a factual basis" 
means the claim is well grounded.  Epps, supra.  
Consequently, development is undertaken pursuant to M21-1 
Part VI,  2.10(f) only after the veteran has presented a 
well-grounded claim.  As the veteran has not done so here, 
M21-1 Part VI,  2.10(f) is not applicable to his case.
M21-1 Part III,  1.03(a) provides that "[b]efore a decision 
is made about a claim being well-grounded, it will be fully 
developed."  However, only when a claim is well grounded 
does VA have an obligation to assist the claimant in 
"developing the facts pertinent to the claim." Robinette v. 
Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) 
(referring to evidentiary development required by the duty to 
assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil 
v. Brown, 8 Vet. App. 459, 465 (1996).  In contrast to the 
evidentiary development referred to in 38 U.S.C.A. § 5107(a), 
the provisions of M21-1, Part III,  1.03(a) refer to 
development of the claim.  The requirement to fully develop a 
claim - as compared to development of the evidence underlying 
the claim - merely demands that VA ensure that the veteran 
has not filed a defective or incomplete application.  See 
38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78.  
See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as 
an application for VA benefits); see also M21-1, Part III,  
1.01(a) (discussing development of pertinent facts 
"concerning a well-grounded claim"); M21-1, Part VI,  
2.10(f) (discussed, supra); compare M21-1, Part III,  
2.01(c) (during initial screening stage of claims processing, 
the RO shall review all applications and evidence immediately 
to determine if "a claim" is incomplete and requires 
"further development").  Indeed, M21-1, Part III,  1.03(a) 
relies upon Grottveit v. Brown, 5 Vet. App. 91 (1993), in 
which the Court stated that, "[i]f the claim is not well 
grounded, the claimant cannot invoke the VA's duty to assist 
[under 38 U.S.C.A. § 5107(a)] in the [evidentiary] 
development of the claim."  Grottveit at 93, citing 
38 U.S.C.A. § 5107(a).  Therefore, until a veteran has 
submitted a well-grounded claim, VA is under no duty to 
assist the veteran in establishing the evidentiary elements 
of his claim.  

In other words, the requirement to "fully develop" a claim 
pursuant to M21-1, Part III,  1.03(a) is not identical to 
the duty to assist which arises after a well-grounded claim 
has been submitted; instead, it appears to merely reiterate 
the duty to inform under 38 U.S.C.A. § 5103.  Consequently, 
ensuring that a claim is "fully developed" under M21-1 Part 
III,  1.03(a) means that, where the veteran's application 
for benefits is incomplete, VA shall notify the veteran of 
the evidence necessary to complete the application.  Id. at 
80.  As there is no indication in the present case that the 
veteran's application is incomplete, or that he is aware of 
evidence which would render his claim well grounded, the 
Board finds that the RO complied with 38 U.S.C.A. § 5103 and 
 1.03(a).


ORDER

Service connection for acute peripheral neuropathy is denied.



		
	MARK F. HALSEY
	Member, Board of Veterans' Appeals