Citation Nr: 9928554	
Decision Date: 09/30/99    Archive Date: 10/12/99

DOCKET NO.  91-36 859	)	DATE
	)
	)

On appeal certified by the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Entitlement to service connection for a skin disorder as 
a result of Agent Orange exposure.

2.  Entitlement to compensation pursuant to 38 U.S.C.A. 
§ 1151 (West 1991) for compression fractures of the fourth 
and fifth vertebrae of the thoracic spine.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Jeffrey M. Blankenship, Associate Counsel


INTRODUCTION

The veteran had active service from October 1964 to August 
1966.  The veteran has been adjudged incompetent for purposes 
of the Department of Veterans Affairs (VA), and his spouse, 
Betty, has been appointed as the payee for his VA benefits.  
The veteran has been assigned a 100 percent schedular rating 
for his service-connected post-traumatic stress disorder; 
however, the amount of benefits he receives has been reduced 
due to his incarceration.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from decisions of the VA Regional Office 
(RO) in Columbia, South Carolina.  The case was previously 
remanded by the Board in February 1992, October 1995, and May 
1996.  The case was then transferred to the Atlanta, Georgia, 
RO who returned the case to the Board in February 1999.


FINDINGS OF FACT

1.  The claim of entitlement to service connection for a skin 
disorder as a result of Agent Orange exposure is not 
supported by cognizable evidence demonstrating that the claim 
is plausible or capable of substantiation.

2.  The claim of entitlement to compensation pursuant to 
38 U.S.C.A. § 1151 for compression fractures of the fourth 
and fifth vertebrae of the thoracic spine is not supported by 
cognizable evidence demonstrating that the claim is plausible 
or capable of substantiation.


CONCLUSIONS OF LAW

1.  The claim of entitlement to service connection for a skin 
disorder as a result of Agent Orange exposure is not well 
grounded.  38 U.S.C.A. § 5107 (West 1991).

2.  The claim of entitlement to compensation pursuant to 
38 U.S.C.A. § 1151 for compression fractures of the fourth 
and fifth vertebrae of the thoracic spine is not well 
grounded.  38 U.S.C.A. § 5107.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

The service medical records reveal no treatment for any skin 
problems.  On physical examination at the time of his 
separation from service in August 1966, evaluation of his 
skin was normal.  

VA treatment records show the veteran was seen in January 
1978 for treatment of a rash on the chest and back that he 
reportedly had had on and off since 1975.  The assessment was 
tinea versicolor.  A fine rash over the side of the veteran's 
body was noted during a February 1985 VA hospitalization.  In 
October 1985, it was noted that he had complaints of a rash 
all over that came on and off.  The diagnosis was tinea 
versicolor.    

The report of a VA Agent Orange examination in January 1985 
listed the veteran's occupation as a chemical operator.  It 
was reported that he served in Vietnam from 1965 to 1966.  
Physical examination noted he had tinea versicolor on the 
chest and back.  

A VA hospitalization report shows the veteran was 
hospitalized from July to August 1986 for treatment of post-
traumatic stress disorder.  It was noted that he was wearing 
a soft neck collar and had back and neck injuries from a 
recent motor vehicle/train accident.

A July 1986 report of a psychiatric evaluation by a 
physician, William J. Felber, M.D., notes that the veteran 
reported previous treatment at a VA facility for a chronic 
dermatological problem since 1978.  Dr. Felber also noted 
that the appellant wore a cervical collar as a result of 
injuries sustained in a car/train accident. 

A March 1987 decision from the Social Security Administration 
noted that the veteran had been hospitalized in May 1986, 
apparently for treatment of post-traumatic stress disorder, 
but it was also reported that he had been injured in an 
automobile accident where he ran into a train. 

VA hospitalization records show the veteran was hospitalized 
at the VA Medical Center in Charleston, South Carolina from 
April 14 to 22, 1988.  The medical history report completed 
at the time of the veteran's admission noted that he had back 
ache secondary to a motor vehicle accident.  A history of 
convulsions three weeks previously, as well as a long history 
of alcohol abuse were also noted.  Physical examination noted 
that the veteran's neck and spine were normal.  X-ray 
examination of the chest was reported as normal.  Treatment 
notes from April 15th indicate that the veteran had two 
seizures on the night of April 14th.  It was stated that the 
veteran was found on the floor in the hall in front of his 
room bed shaking with tremors in the hands and feet.  He had 
frothy mucus from the mouth.  He was assisted to bed.  There 
was no indication in the hospital records that the veteran 
had been injured during the seizures.  The discharge summary 
did not mention any injury resulting from a fall.  

A VA report of an x-ray examination of the thoracic spine, 
performed on April 25,1988, noted an approximate 60 percent 
compression of the body of T5 and an approximate 40 percent 
compression of the body of T4.  It was also reported that in 
retrospect, when viewing lateral view of the chest on films 
of April 14, 1988, the compression fractures appeared to have 
been present at that time, although bone detail in this area 
in question was not well defined.  However, when compared 
with films of March 1, 1988 on which the upper thoracic spine 
was well seen in the lateral chest projection, it was noted 
that these fractures were not present at that time.  The 
clinical impression was recent T4 and T5 compression 
fractures.

A May 1988 VA outpatient clinic report notes a history of a 
thoracic spine fracture related to seizure activity.

An April 1989 statement from the VA Medical Center in 
Charleston, South Caroline indicates that there was no record 
of the veteran being an inpatient there in 1984.  

A May 1989 VA outpatient clinic report notes a history of a 
March 1987 back injury after falling out of bed while having 
a seizure.  Physical examination disclosed stable findings, 
without significant change or progression to a kyphosis.  X-
ray study showed minimal T4 and T5 compressions without 
change since June 1988.

A November 1989 orthopedic treatment note records the 
veteran's self reported history of L4-5 and C7 pain since 
March 1987 when he fell from bed in the Charleston VA Medical 
Center during a seizure.  It was noted that he had a T4-T5 
fracture with the seizure accident.  It was also reported 
that he had had a motor vehicle accident in 1986 and that the 
T4-T5 fracture was present in a 1986 film.  

At a personal hearing before a hearing officer at the RO in 
February 1991, the veteran testified that he left Vietnam in 
1966 and first noticed a skin rash in 1976.  He said that he 
was in reconnaissance, did a lot of bush walking, and was 
sometimes out for 45 to 50 days.  He reported that he was 
never treated for a skin rash while in Vietnam.  He testified 
that he was first treated for the rash in 1979 and that his 
rash comes and goes.  He said that he believed his skin 
problems were the result of his exposure to Agent Orange in 
Vietnam.  He also testified that he went to the VA hospital 
in Charleston, South Carolina in 1988 for treatment of 
seizures and he fell out of the bed after being at the 
hospital less than eight hours.  He said that, after the 
fall, he felt pain in his upper and lower back and told the 
doctor about it.  They took an x-ray about three days later 
and found out that he had a fracture.  He said that his fall 
was due to the negligence of the hospital staff because they 
did not raise the rails on his bed.       

The report of an April 1991 special VA skin examination 
stated that the veteran was being evaluated for a recurrent 
rash that was first noted in 1973.  The veteran reported that 
he had little pimples that formed on his skull in the 
hairline associated with a scaling of the perinasal area with 
associated erythema.  He also stated that he had an 
associated rash on the chest which he described as being a 
darkish discoloration that extended over the anterior chest.  
He stated that the above exanthem occurred approximately six 
times per year and lasted approximately three weeks.  It was 
not associated with any changes in weather and was not 
affected by the various creams and ointments that he had been 
prescribed over the number of years.  The veteran attributed 
the rash to his service in Vietnam, even though there was 
quite a delay between the development of the rash and his 
service in Vietnam.  It was reported that he had been 
evaluated at the VA Medical Center in Charleston, South 
Carolina which gave an assessment of questionable 
folliculitis with dermatosis papulosa nigra without evidence 
of tinea versicolor.  It was further reported that the 
veteran did not complain of any rash at the time of the 
examination.  The last episode occurred approximately two to 
three weeks previously with resolution.  The examiner 
reported that there was no evidence of an exanthem at that 
time of examination.  There was no discoloration of the skin 
or any scarring in the areas which were involved with the 
exanthem when they were present.  Diagnosis was skin 
exanthem, which had been described as dermatosis papulosa 
nigra and intermittent folliculitis, which was not present on 
examination and prevented adequate evaluation of the 
disorder.  

In February 1997, the veteran failed to report for a VA 
examination previously ordered by the Board.  The basis for 
this failure to report was the appellant's felony conviction 
and then current incarceration.

Analysis

The veteran is seeking service connection for a skin disorder 
as a result of Agent Orange exposure and VA disability 
compensation pursuant to 38 U.S.C.A. § 1151 for compression 
fractures of the fourth and fifth vertebrae of the thoracic 
spine.  The legal question to be answered initially is 
whether the veteran has presented evidence of well-grounded 
claims on these issues; that is, claims that are plausible.  
If he has not presented well-grounded claims, his appeal must 
fail and there is no duty to assist him further in the 
development of the claims because such development would be 
futile.  38 U.S.C.A. § 5107(a).  As will be explained below, 
the Board finds that his claims are not well grounded. 

Initially, the Board observes that all appropriate 
development has now been accomplished and the veteran's 
claims are ready for a final determination.  The Board 
remanded the case in May 1996 for additional development, 
including a special VA dermatological examination.  The 
veteran was scheduled for VA examinations in February and 
April 1997, but he failed to report for either examination.  
The record shows that the veteran was incarcerated in May 
1996 and was still incarcerated at the time of these 
examinations.  Thus, while all of the medical information 
requested has not been secured due to the veteran's 
incarceration, this is a result of his inability to report, 
not by reason of a lack of diligence on the part of VA.  As 
the duty of VA to assist the veteran has been satisfied, the 
Board's review of his claim is now appropriate.  Olson v. 
Principi, 3 Vet. App. 480 (1992).

Additionally, the veteran has indicated different dates for 
the time of his reported thoracic spine injury.  In his 
original claim on this issue, submitted in April 1989, the 
veteran stated that he had fractured his thoracic spine while 
hospitalized at the VA Medical Center in Charleston, South 
Carolina in April 1984.  In a statement submitted in June 
1989, he alleged the fracture occurred while hospitalized at 
the Charleston VA hospital in February 1988.  Finally, an 
unsigned VA Form 21- 4138, Statement in Support of Claim was 
received in November 1996.  This form was apparently in 
response to VA requests to identify when and where the 
veteran claimed he had injured his thoracic spine while 
hospitalized at a VA hospital.  "Charleston VA" and 
"October 1988" were written on the form.  The RO has 
requested copies of the veteran's treatment records from both 
the Charleston and Columbia, South Carolina VA Medical 
Centers.  These records have been associated with the claims 
file and show that the veteran fell while hospitalized at the 
Charleston facility in April 1988.  Thus, despite the various 
dates indicated previously, the Board finds that the current 
record is sufficient to proceed on this issue.


Service connection for a skin disorder as a result of Agent 
Orange exposure

The veteran contends that he has a skin condition resulting 
from exposure to Agent Orange during service in Vietnam.  He 
does not contend, nor do his service medical records show, 
that he had any complaints or treatment for skin problems 
during service.  Rather, the basis of his claim is that his 
skin disorder developed after service as a result of Agent 
Orange exposure.       

The law provides that 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); 
38 C.F.R. § 3.303 (1998).  Pursuant to 38 U.S.C.A. § 1116 
(West 1991) and 38 C.F.R. §§ 3.307(a) and 3.309(e) (1998), in 
the case of a Vietnam-era veteran, no direct evidence as to 
the in-service incurrence and medical nexus prongs is 
necessary when those sections are satisfied.  See Brock v. 
Brown, 10 Vet. App. 155, 162 (1997).  Mere service, however, 
in Vietnam does not trigger the application of the 
presumptive regulations pertaining to herbicide exposure.  
Rather, a veteran is only presumed to have been exposed if, 
and only if, he or she develops one of the enumerated 
presumptive disorders.  If the veteran does not have an Agent 
Orange presumptive disorder, a presumption of exposure to 
herbicides does not arise.  See 38 C.F.R. § 3.307(a)(6)(iii).  
McCartt v. West, 12 Vet. App. 164 (1999).  Finally, the 
appellant may also establish service connection for a 
disability due to  exposure to Agent Orange on a direct 
basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

"A determination of service connection requires a finding of 
the existence of a current disability and a determination of 
a relationship between that disability and an injury or 
disease incurred in service."  Watson v. Brown, 4 Vet. 
App. 309, 314 (1993).  Three discrete types of evidence must 
be present in order for a veteran's claim for benefits to be 
well grounded:  (1) There must be competent evidence of a 
current disability, usually shown by medical diagnosis; (2) 
There must be evidence of incurrence or aggravation of a 
disease or injury in service.  This element may be shown by 
lay or medical evidence; and (3) There must be competent 
evidence of a nexus between the in-service injury or disease 
and the current disability.  Such a nexus must be shown by 
medical evidence.  See Epps v. Gober, 126 F.3d 1464, 1468 
(Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. 
Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 
(1995).  

The veteran contends that service connection should be 
granted for a skin disorder due to Agent Orange exposure.  
Since none of the skin disorders the veteran has been shown 
by the medical evidence to have are conditions that would be 
presumptively service connected under 38 U.S.C.A. § 1116 and 
38 C.F.R. §§ 3.307 and 3.309(e), the Board concludes that, 
based on the evidence presently of record, he has not 
submitted a well-grounded claim for presumptive service 
connection.  McCartt.

With respect to service connection on a direct basis, the 
record demonstrates that a skin disorder was not found in 
service or on separation from service, and one was not 
diagnosed until many years after separation from service.  
While various medical treatment and examination records 
postservice confirm a long history of skin disorders, there 
is no medical opinion or scientific evidence linking any skin 
disorder to either exposure to Agent Orange or to any 
incident of service.

In support of his claim, the veteran has only offered his own 
unsubstantiated contentions, as set out in his hearing 
testimony and various written statements, to relate his skin 
disorder to Agent Orange exposure in Vietnam.  While the 
veteran is certainly capable of providing evidence of 
symptomatology, "the capability of a witness to offer such 
evidence is different from the capability of a witness to 
offer evidence that requires medical knowledge..."  Espiritu 
v. Derwinski, 2 Vet. App. 492, 494 (1992).  Causative factors 
of a disease amount to a medical question; only a physician's 
opinion would be competent evidence.  Gowen v. Derwinski, 3 
Vet. App. 286, 288 (1992).
 
A well-grounded claim requires more than a mere assertion; 
the claimant must submit supporting evidence.  Tirpak v. 
Derwinski, 2 Vet. App. 609, 611 (1992).  In this case, the 
veteran has not presented any medical or other competent 
evidence that he has any of the disabilities which are 
presumed to be the result of exposure to Agent Orange under 
the regulations mentioned above.  Likewise, he has presented 
no medical or other competent evidence to show that his skin 
disorders are in any way related to his service.  Since the 
veteran has not submitted sufficient evidence to show that 
such a disability is the result of service, the Board finds 
that he has not met the initial burden of submitting evidence 
sufficient to justify a belief by a fair and impartial 
individual that his claim is well grounded.  38 U.S.C.A. § 
5107.  Since the claim is not well grounded, it must be 
denied.  See Edenfield v. Brown, 8 Vet. App. 384, 390 (1995). 

Entitlement to compensation pursuant to 38 U.S.C.A. § 1151

The veteran contends that he is entitled to compensation 
pursuant to 38 U.S.C.A. § 1151 for compression fractures of 
the fourth and fifth vertebrae of the thoracic spine is 
denied.  He asserts that he fractured his spine when he fell 
out of his bed while hospitalized at a VA hospital, and this 
fall was due to negligence on the part of the hospital staff 
because they did not raise the rails on the bed.    

In January 1990, the RO denied the veteran's claim under 38 
U.S.C.A. § 351 (now 38 U.S.C.A. § 1151) because it was 
determined that his fractures of the thoracic spine were not 
related to careless, accident, negligence, lack of proper 
skill or error in judgment or other circumstances of 
indicated fault on the part of VA.

During the pendency of this appeal, the United States Supreme 
Court in Brown v. Gardner, 115 S. Ct. 552 (1994), affirmed a 
decision of the United States Court of Veterans Appeals (now 
the United States Court of Appeals for Veterans Claims) that 
had invalidated the provisions of 38 C.F.R. § 3.358(c)(3) as 
in violation of the statutory rights granted to veterans by 
Congress under 38 U.S.C.A. § 1151.  The Supreme Court held 
that VA was not authorized by 38 U.S.C.A. § 1151 to exclude 
from compensation the "contemplated or foreseeable" results 
of non-negligent medical treatment, as then permitted by 38 
C.F.R. § 3.358(c)(3).  The Supreme Court agreed with the 
Court of Appeals for Veterans Claims that the regulation 
cited was contrary to the clear language of the statute and 
was therefore invalid.

Amended VA regulations pertaining to 38 C.F.R. § 3.358 were 
issued to conform with the United States Supreme Court 
decision in Brown v. Gardner.  The changes essentially 
deleted the requirement that VA be at fault or that an 
accident occur in order for compensation benefits to be 
payable under 38 U.S.C.A. § 1151.  

While new legislation was enacted during the instant appeal 
period amending 38 U.S.C.A. § 1151, the Board notes that 
Public Law 104-204 serves to further restrict the application 
of 38 U.S.C.A. § 1151 and is less favorable to the veteran 
than the statute previously in effect.  As such, the Board 
shall apply the law in effect prior to October 1, 1997, in 
evaluating this claim. 

According to 38 U.S.C.A. § 1151, where a veteran suffers an 
injury or an aggravation of an injury resulting in additional 
disability to the individual by reason of VA hospital, 
medical, or surgical treatment, disability compensation shall 
be awarded in the same manner as if such disability or 
aggravation were service-connected.  Applicable regulations 
provide that, in determining whether additional disability 
resulted from a disease or injury or an aggravation of an 
existing disease or injury suffered as a result of VA 
hospitalization, medical or surgical treatment, it will be 
necessary to show that additional disability is actually the 
result of such disease or injury or aggravation of an 
existing disease or injury and not merely coincidental 
therewith.  38 C.F.R. § 3.358(c).

In this case, the evidence shows that the veteran was 
hospitalized in April 1988 at the VA Medical Center in 
Charleston, South Carolina.  The records of this 
hospitalization confirm that the veteran was found on the 
floor near his bed while he was having a seizure.  However, 
there is nothing in the medical records that shows he 
fractured his thoracic spine as a result of falling from his 
bed.  

The veteran has not offered any medical or other competent 
evidence to show that his thoracic spine fracture directly 
resulted from his fall or any other event during his 
hospitalization in April 1988.  Rather, he has offered only 
his unsupported contentions to establish such a relationship.  
Additionally, it is well to note that the medical evidence is 
unclear regarding when the veteran's thoracic spine was 
actually fractured.  Even assuming, however, that it was 
fractured there is nothing in the medical evidence to show 
the fracture resulted from a fall while hospitalized in April 
1988.  Subsequent medical records report histories of the 
veteran having fractured his thoracic spine during this fall, 
but these histories are purely based on the veteran's own 
reports.  As noted previously, the veteran is competent to 
offer evidence relating to symptomatology, but he is not 
competent to offer evidence that requires medical knowledge.  
Espiritu.  

Since the veteran has submitted no medical opinion or other 
competent evidence in support of his claim for compensation 
pursuant to 38 U.S.C.A. § 1151 for compression fractures of 
the fourth and fifth thoracic vertebrae, the Board finds that 
he has not met the initial burden of submitting evidence 
sufficient to justify a belief by a fair and impartial 
individual that his claim is well grounded.  38 U.S.C.A. 
§ 1151; 38 C.F.R. § 3.358.  Thus, his appeal on this issue is 
denied.  See Boeck v. Brown, 6 Vet. App. 14 (1993). 

As the foregoing explains the need for competent evidence 
linking the fracture residuals to medical treatment provided 
by VA, the Board views its discussion in this decision as 
sufficient to inform the appellant of the elements necessary 
to complete his application for a claim of entitlement to 
service connection and for compensation pursuant to 
38 U.S.C.A. § 1151.  Robinette v. Brown, 8 Vet. App. 69, 79 
(1995).


ORDER

Entitlement to service connection for a skin disorder as 
secondary to Agent Orange exposure is denied.

Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 
for compression fractures of the fourth and fifth vertebrae 
of the thoracic spine is denied.



		
	DEREK R. BROWN 
	Member, Board of Veterans' Appeals

 


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