Citation Nr: 9917123 Decision Date: 06/22/99 Archive Date: 06/29/99 DOCKET NO. 97-19 213 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for a disorder manifested by a mass on the lung due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from February 29, 1956 to February 4, 1960, from January 31, 1968 to October 31, 1969, and from January 30, 1970 to March 31, 1984. His active duty included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision by the RO that denied, in part, a claim of entitlement to service connection for a disorder manifested by a mass on the lung due to exposure to herbicides. By a decision entered in January 1985, the RO granted a claim of entitlement to service connection for restrictive lung disease. At a hearing before a hearing officer in June 1997, it was maintained that a disorder manifested by a mass on the lung was an entity separate from the veteran's service-connected restrictive lung disease. Consequently, the Board construes the claim of service connection for a disorder manifested by a mass on the lung as a claim distinct from restrictive lung disease. FINDING OF FACT No competent medical evidence has been presented to show that the veteran currently has a disorder manifested by a mass on the lung that is attributable to military service. CONCLUSION OF LAW The claim of service connection for a disorder manifested by a mass on the lung due to exposure to herbicides is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION 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 by service. 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); Murphy v. Derwinski, 1 Vet. App. 78 (1990). 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 between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 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); see also Epps v. Gober, 126 F.3d at 1468. The veteran claims that he has a spot on his lungs due to exposure to Agent Orange during service in Vietnam. He claims that around June or July 1995, when he was examined at the VA Medical Center (VAMC) in Buffalo, New York, a mass was detected on his lung, which he believes resulted from Agent Orange exposure. 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). Based on a review of the evidence, the Board finds that the veteran's claim of service connection is not well grounded. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. The veteran's DD-214 shows that he served in the Republic of Vietnam. However, the Board notes that the presumptive provisions of 38 U.S.C.A. § 1116(a) and 38 C.F.R. § 3.309(e) cannot be relied upon by the veteran to establish service connection for a disorder manifested by a mass on the lung unless such a disorder is enumerated in either 38 U.S.C.A. § 1116(a) or 38 C.F.R. § 3.309(e). Here, the evidence does not show that such a disorder is one of the listed diseases. Consequently, 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 he has one of the listed diseases. 38 C.F.R. § 3.309(e); see McCartt v. West, 12 Vet. App. 164 (1999). The veteran is not precluded from otherwise fulfilling the nexus requirement. See Combee, 34 F.3d at 1039. However, he has not submitted any competent medical evidence of a nexus between any disorder manifested by a mass on the lung and service, or already service-connected disability. The veteran's service medical records are negative for complaints of, treatment for, or diagnosis of a disorder manifested by a mass or spot on the lung. The records show that he was treated for complaints of chest pain on numerous occasions; however, chest x-rays revealed no definite active diseases or acute pulmonary abnormalities. VA and private treatment reports, dated from April 1984 to May 1995, note the veteran's history of emphysema, and early congestive heart failure. These records do not contain evidence of a mass on the lung. In September 1984, a VA examiner noted that the veteran had severe obstructive lung disease on spirometry. Chest x-ray revealed no evidence of cardiac, pulmonary, or pleural disease. At a December 1984 VA examination, it was noted that the chest revealed minimal restrictive ventilatory defect. At a July 1992 VA examination, severe obstructive lung disease was diagnosed. X-rays of the chest taken in August 1984, February and July 1986, September 1988, November 1990, October 1991, February and July 1992 did not show a mass or spot on the lung. VA treatment records, dated on June 16, 1995, indicate that it was noted that a physician had "found a spot on [the veteran's] lung." A computerized tomography (CT) scan of the chest, dated on June 19, 1995, found several normal-sized lymph nodes in the right paratracheal region and aorto- pulmonary window region. No other significant abnormality was identified. The impression was several normal-sized mediastinal lymph nodes, otherwise normal. Chest x-rays, dated on June 19, 1995, revealed that the lungs were clear. The cardio-mediastinal silhouette was normal with no cardiomegaly or masses. Mild aortic tortuosity was present. It was noted that no significant abnormalities were recognized in the chest. Chest x-rays, dated on June 23, 1995, revealed no acute cardiopulmonary disease; the lungs were clear. Chest x-ray, dated in June 1998, revealed congestive heart failure. The remaining VA treatment reports do not refer to a spot on the lung. Chest x-rays, dated in February 1997, showed that the lungs were clear. There was no evidence of pleural effusion or acute cardiopulmonary abnormality. Chest x-ray, dated in June 1997, was within normal limits. The lungs were clear. The heart, mediastinum, and hila were normal. There were no osseous abnormalities. The remaining private treatment reports do not refer to a spot on the lung. Chest x-rays, dated in June 1996, revealed mild prominence of the cardiac silhouette. Mediastinal contours were prominent, but stable. Pulmonary vasculature was normal, and there was no evidence of focal pulmonary opacity. Chest x-ray, dated in July 1997, revealed early congestive heart failure. Chest x-rays, dated in March 1998, showed that the lungs were clear of acute infiltrates. The cardiac silhouette was within normal limits. The pulmonary vasculature was unremarkable and no infiltrate was seen. In short, no competent medical evidence has been presented to show that the veteran currently has a disorder manifested by a mass on the lung that is attributable to problems incurred in or aggravated by military service. He has also not submitted any competent evidence of a nexus between any disorder manifested by a mass on the lung and service, or already service-connected disability. While the record shows that a spot on the lung may have been detected in June 1995, it was not confirmed by subsequent CT scan or x-ray findings. Although the veteran claims that he has a mass on the lung due to herbicide exposure, the only support for such assertions is his own statements, including his June 1997 testimony. While he is competent to provide information regarding the symptoms he currently experiences and has experienced since his separation from military service, there is no indication that he is competent to diagnose a disorder manifested by a mass on the lung or to comment upon its etiology or time of onset. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu, 2 Vet. App. at 495. In conclusion, the Board notes that, even if exposure to herbicides during service is conceded, the lack of competent medical evidence showing that a disorder manifested by a mass on the lung is related to such exposure is significant. The claim is not well grounded. The Board has also considered that certain VA and private medical evidence was received by the RO after the last supplemental statement of the case (SSOC) was issued in October 1997. The veteran has not submitted a waiver of RO consideration of that evidence. See, e.g., 38 C.F.R. § 20.1304(c) (1998). However, in such circumstances, a SSOC is only required where the evidence in question is "pertinent." 38 C.F.R. §§ 19.31, 20.1304(c) (1998). Here, the Board finds that the evidence received after October 1997 is either duplicative of evidence previously submitted, or is not pertinent to the veteran's claim. Although it mentions various diagnoses, including congestive heart failure as seen on chest x-rays, it does not address whether the veteran has a disorder manifested by a mass on the lung. Thus, the evidence is not pertinent to the instant appeal. Accordingly, further action with respect to this evidence is not necessary. Bernard v. Brown, 4 Vet. App. 384, 394 (1993); 38 C.F.R. § 19.37 (1998). It has also been contended on the appellant'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 appellant has presented a well-grounded claim. As the appellant 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 appellant 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, supra, 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, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant 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 merely to 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 appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the appellant'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 a disorder manifested by a mass on the lung due to exposure to herbicides is denied. MARK F. HALSEY Member, Board of Veterans' Appeals