Citation Nr: 0328762 Decision Date: 10/23/03 Archive Date: 11/03/03 DOCKET NO. 00-19 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a kidney disability, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for a bilateral knee disability, to include as due to exposure to Agent Orange. 3. Entitlement to service connection for a bilateral foot disability, to include as due to exposure to Agent Orange. 4. Entitlement to service connection for a right hand disability, to include as due to exposure to Agent Orange. 5. Entitlement to service connection for a right wrist disability, to include as due to exposure to Agent Orange. 6. Entitlement to an original (compensable) evaluation for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The veteran served on active duty from September 1970 to June 1973. The veteran served in the Republic of Vietnam from September 9, 1971 to April 8, 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 2001, the Board remanded issues numbered one through five listed on the front page of this decision to the RO in Muskogee, Oklahoma for additional development. This case has returned to the Board for final appellate review. As the veteran's appeal of entitlement to an initial compensable evaluation for service-connected bilateral hearing loss arises from an original award of service connection, the rating issue on appeal involves the propriety of the original evaluation assigned. Therefore, this issue has been framed as that listed on the front page of this decision. See Fenderson v. West, 12 Vet. App. 119 (1999). In a statement to the RO, dated in July 2001, the veteran appeared to raise claims for secondary service connection. However, it is unclear exactly which disabilities he was specifically claiming. Therefore, the RO should contact the veteran and ask him to clarify whether or not he is seeking entitlement to service connection on a secondary basis and, if so, for which disability (ies). After a response from the veteran, the RO should take the appropriate action. Finally, the issue of entitlement to an initial compensable evaluation for service-connected bilateral hearing loss will be addressed in the remand section of the decision. FINDINGS OF FACT 1. The veteran served in the Republic of Vietnam during the Vietnam Era; exposure to Agent Orange may be presumed. 2. The veteran's kidney disability, bilateral knee disability, and bilateral foot disability, were not present in service or for many years afterward; and are not etiologically related to service, to include exposure to Agent Orange in Vietnam. 3. The competent (clinical) evidence of record does not demonstrate the veteran currently has a right wrist or right hand disability. CONCLUSIONS OF LAW 1. A kidney disability was not incurred or aggravated in service nor may it be presumed that this claimed disability was incurred or aggravated as a result of the veteran's exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2002); 38 C.F.R. § 3.307 (as amended by 67 Fed. Reg. 67792-677793 (Nov. 7, 2002). 2. A bilateral knee disability was not incurred in or aggravated in service nor may it be presumed that this claimed disability was incurred or aggravated as a result of the veteran's exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2002); 38 C.F.R. § 3.307 (as amended by 67 Fed. Reg. 67792-677793 (Nov. 7, 2002). 3. A bilateral foot disability was not incurred in or aggravated in service nor may it be presumed that this claimed disability was incurred or aggravated as a result of the veteran's exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2002); 38 C.F.R. § 3.307 (as amended by 67 Fed. Reg. 67792-677793 (Nov. 7, 2002). 4. A right wrist disability was not incurred in or aggravated in service nor may it be presumed that this claimed disability was incurred or aggravated as a result of the veteran's exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2002); 38 C.F.R. § 3.307 (as amended by 67 Fed. Reg. 67792-677793 (Nov. 7, 2002). 5. A right hand disability was not incurred in or aggravated in service nor may it be presumed that this claimed disability was incurred or aggravated as a result of the veteran's exposure to Agent Orange. 38 U.S.C.A. §§ 1110, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.309 (2002); 38 C.F.R. § 3.307 (as amended by 67 Fed. Reg. 67792-677793 (Nov. 7, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002)). This new law eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duties to notify and to assist claimants in the development of their claims. First, the VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. VCAA, § 3(a), 114 Stat. 2096, 2096-97 (2000). See 38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2002). In this regard, VA will inform the veteran of which information and evidence, if any, that he is to provide and which information and evidence, if any, VA will attempt to obtain on his behalf. VA will also request that the veteran provide any evidence in his possession that pertains to the claim. Second, the VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. VCAA, § 3(a), 114 Stat. 2096, 2097-98 (2000). See 38 U.S.C.A. § 5103A. It is unclear, at this time, whether the VCAA applies to the claims in this current appeal because they were filed before enactment of VCAA. See Kuzma v. Principi, No. 03-7032 (Fed. Cir., August 25, 2003). However, the factual scenario in Kuzma, as well as in the prior Federal Circuit cases of Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002), and Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002), cited therein, was that proceedings were complete before VA when the VCAA was enacted. Clearly, that is not the case here. Furthermore, there is contrary legal precedent, see VAOPGCPREC 11-00, which holds the VCAA applies retroactively to claims pending on the date the law was enacted, such as these claims. With respect to notice, VA letters to the veteran, to specifically include as dated in August 30, 2001, and rating decisions, a statement of the case, and supplemental statements of the case, informed the appellant of the evidence necessary to substantiate his claims, as well as VA development activity. As such, VA's duty to notify has been met. See Quartuccio v. Principi, No. 01- 997 (U.S. Vet App. June 19, 2002). With regard to the duty to assist, the record contains the veteran's service medical records, as well as reports of VA and private post service treatment and examination. The Board has carefully reviewed the veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. The veteran maintains, in essence, that he currently has a kidney disability, bilateral knee disability, bilateral foot disability, right wrist disability, and right hand disability which are etiologically related to his active service. Concerning his kidney disability, he maintains that he was given a pill in Vietnam that turned his urine orange, and that he has had problems with his bladder since that time. With respect to his right wrist disability, the veteran contends that he developed pain in his right wrist while carrying supplies in Vietnam, that he has continued to have pain and swelling since that time, and, as a result, he underwent a right hand carpal tunnel release in 1992. Regarding his right hand disability, the veteran maintains that he had a ganglion cyst removed from the back of his right hand at Fort Stewart, Georgia in 1973 and that he has pain since that time. Finally, with respect to his feet, he contends that he developed swelling in 1974, that he has continued to have numbness and swelling in his feet, and that he has been diagnosed as having gout. His contentions relative to a bilateral knee disability are that he had swelling of the knees in service. Further, he also maintains that the disabilities on appeal are the result of his exposure to Agent Orange during his active service in Vietnam as an ammunition specialist. Factual Background Service personnel records, to include the veteran's DD 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, reflects that he served in the Republic of Vietnam from September 9, 1971 to April 8, 1972. The veteran was awarded the Vietnam Service Medal and the Vietnam Combat Medal with 60 device. The service medical records, to include a June 1973 separation examination report are devoid of any complaints, medical treatment, abnormal findings, or diagnoses indicative of the disabilities at issue on appeal. Post-service VA and private treatment and examination reports and records received from the Social Security Administration, dating from 1993 to 2003, are of record. Private treatment reports reflect that impressions of gout and left knee effusion were recorded. In June 1999, the veteran was evaluated at a private facility for intractable urinary frequency. He was positive for cytology. VA and private treatment reports, dated in August and September 1999, reflect diagnoses of cystitis and urinary frequency due to a small capacity bladder, respectively. An August 1999 VA orthopedic examination report reflects that the veteran denied any specific injury to either knee during service but indicated that he had had pain and swelling. He complained of constant pain in both knees with intermittent swelling. He related that he lacked full range of motion in the left knee, which altered how he would ascend and descend stairs. A physical evaluation of the right hand and wrist by VA in August 1999 revealed a nontender transverse scar on the dorsal aspect of the right hand and a scar over the volar aspect of right wrist. The remainder of the examination was essentially within normal limits. X-rays of the right wrist revealed no narrowing of the articular cartilage, osteophyte formation, fracture or dislocation. Examinations of the knees was essentially normal with the exception of slight loss of extension and flexion in the left knee. X-rays of the knees revealed calcification at the insertion of the quadriceps tendon, bilaterally. A small calcific density inferior of the right patella, which would have been due to previous trauma was also noted. A physical evaluation of the feet was also within normal limits. X-rays of the feet showed calcification at the insertion of the Achilles tendon into the calcaneus, bilaterally. The examiner deferred entering an impression pending a magnetic resonance imaging (MRI) scan of the left knee and a serum uric acid determination. An August 1999 VA genitourinary examination reported that the veteran gave a history of having problem with his bladder since Vietnam, and that they have increased since that time. He stated that he was given a pill when he was in Vietnam and that it turned his urine orange. The veteran complained of intermittent pain in the groin area. He reported that he would get up at least ten times at night to void. He related that he had a frequency to urinate both during the day and at night, but more so at night. The veteran reported that he had been told by a physician that his bladder was smaller than normal. He also complained of hesitancy and dribbling. He maintained that his stream started and stopped and that he had daily incontinence. The veteran did not wear pads. After a physical evaluation of the veteran, a diagnosis of overactive bladder was entered. A September 1999 MRI report of the left knee revealed finings consistent with synovial chondromatosis. A September 1999 VA examination report reflects that a serum uric acid test was performed, and suggested that the veteran did not have gout as the cause of his problems associated with his feet. The examiner entered impressions of status post carpal tunnel release of the right wrist, status post excision of a ganglion cyst of the right hand and synovial chondromatosis of the left knee. The examiner was unable to find any objective evidence of organic pathology in the right knee. He also noted that the veteran had a history of swelling in both feet, which was not present upon examination and was not felt to be due to an orthopedic problem. An October 2001 VA outpatient reported reflects that the veteran had swelling at the upper lateral aspect of his left knee. An impression of joint pain, likely chondrocalcinosis was entered. A MRI report of the left knee, dated in December 2001, revealed findings consistent with synovial chondromatosis. X-rays of the left knee, performed also in December 2001, showed no evidence of any fractures or dislocations. There was a radiolucent area within the posterior aspect of the left femoral condyle distally, which had some periosteal reaction posterior to it. The examiner was unable to determine if it was a benign or malignant process but without any previous X-rays of the left knee, the examiner was unable to give a proper evaluation. The examiner noted if clinically indicated, a radionuclide bone scan might be helpful. When seen in the VA urology clinic in March 2002, an impression of benign prostatic hypertrophy with an element of bladder outlet obstruction was entered. VA X-rays of the knees, performed in July 2002, revealed negligible minimal medial compartment joint space narrowing on the bilateral frontal view of the knee, especially on the right side which might have been exaggerated by the standing position. Patellofemoral joint spaces were well preserved with some suprapatellar effusion on the left knee on the lateral view. Otherwise, no joint "mouse," and no fabella. The bones were noted to have been moderately demineralized. An October 2002 VA orthopedic examination report reflects a history with respect to the disabilities on appeal, which is consistent with that previously reported in this decision. Physical evaluation of the veteran's right wrist and hand, to include X-rays was essentially within normal limits. However, there was a two-inch long scar on the dorsum aspect of the right wrist at the junction of the carpometacarpal joints. An examination of the knees was essentially normal with the exception of a localized one and one half by one and one half by a half an inch thick nontender soft tissue mass, which was lateral to the suprapatellar pouch on the left knee. X-rays of the knees revealed very minimal narrowing of the medial joint space compartments in both knees. In the left knee, there appeared to be a relatively large cystic- appearing structure in the distal femoral metaphysis posterior and fluid in the suprapatellar bursa, both of which were noted to have been unchanged from August 1999. An examination of the feet was normal. X-rays of the feet revealed hypertrophic spurring on the posterior aspects of both calcanei. The examiner reported that during periods of remission, patients with gout would not have positive physical findings unless they had gouty tophi or chronic synovitis. Impressions of status post excision ganglion, right wrist, status post carpal tunnel release, right wrist, synovial chondromatosis, left knee, based upon a 1999 MRI, and history of gout involving both knees and feet were entered by the examiner in October 2002. The examiner concluded that there was no objective disability of the right wrist or hand. While the veteran gave a history of gout, the examiner indicated that it began over a year after his discharge from the service and would not be considered to be service related. Overall, the examiner concluded that none of the veteran's problems were due to exposure to Agent Orange. The examiner noted the reported history of having had a ganglion cyst removed in 1973 was not confirmed by the service medical records. In summary, the examiner concluded that all of the veteran's other problems began after his military service and were unrelated to it. An October 2002 VA genitourinary examination report reflects that the veteran reported a history, which is consistent with that previously reported in this decision. The examiner indicated that further testing needed to be performed in order to provide any information regarding the severity and etiology of the veteran's problem. An impression of urinary frequency undetermined was entered by the examiner. An October 2002 VA renal ultrasound report showed that the right and left kidneys measured 10.3 and 10.7 centimeters, bilaterally. An echo pattern appeared normal, bilaterally. No mass or hydronephrosis was noted. When seen in the VA urology clinic in March 2003, an impression of bladder outlet obstruction secondary to benign prostatic hyperplasia was entered. In an April 2003 addendum to the October 2002 VA genitourinary examination, the VA examiner concluded that a review of the service records did not reveal any notes that indicated that the veteran had symptoms similar to those reported by the veteran. The examiner expounded that most of the subsequent notes had been within the previous three to four years, both "outside" notes as well as those within the VA system. The examiner concluded that all of the veteran's symptoms were consistent with the diagnosis of bladder outlet obstruction secondary to benign prostatic hypertrophy and that there was no recognition of that condition being etiologically related to the veteran's exposure to Agent Orange exposure. Laws and Regulations Service Connection-General Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. § 1110 (West. 2002); 38 C.F.R. § 3.303 (2002). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946 and arthritis or calculi of the kidney become manifested to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in, or aggravated by, service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2003). At the outset, the Board notes that the competent private and VA medical evidence of record does not demonstrate that calculi of the kidney or arthritis of the knees, feet, right wrist or right hand were manifested to a compensable degree within one year of the veteran's discharge from service in 1973. Therefore, service connection on a presumptive basis for the disabilities on appeal is not warranted. Id. Agent Orange Laws and Regulations Regulations pertaining to Agent Orange exposure provide for a presumption of exposure to herbicide agents for veterans who served on active duty in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116, as amended by § 201(c) of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107- 103, 115 Stat. 976 (2001); 38 C.F.R. § 3.307(a)(6) (2002). The statute and regulations also specify the diseases for which service connection may be presumed due to exposure to herbicide agents. The specified diseases are: chloracne, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), multiple myeloma, and respiratory cancers (cancers of the lung, bronchus, trachea, or larynx), and diabetes mellitus (Type 2). A list of soft tissue sarcomas is noted at the end of the regulation. 38 U.S.C.A. § 1116(a)(2), as added by § 201(c) of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107- 103, 115 Stat. 976 (2001); 38 C.F.R. § 3.309(e) (2001); 66 Fed. Reg. 23168 (2001). The Secretary of Veterans Affairs 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 Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996). A disease associated with exposure to herbicide agents listed in § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during service, provided that the disease listed shall have become manifested or aggravated to a degree of 10 percent or more at any time after service, except that chloracne or other acneform consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifested or aggravated to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 U.S.C.A. § 1116, as added by § 201 of the "Veterans Education and Benefits Expansion Act of 2001," Pub. L. No. 107- 103, 115 Stat. 976 (2001); 38 C.F.R. § 3.307 (as amended by 67 Fed. Reg. 67792-677793 (Nov. 7, 2002)). For purposes of establishing service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service connection under this section, 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, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2, 4- dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f) (West 2002). Notwithstanding the foregoing discussion regarding presumptive service connection, which arose out of the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Public Law No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991, Public Law No. 102- 4, § 2, 105 Stat. 11 (1991), the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). Analysis Agent Orange-Presumptive Service Connection The veteran's DD Form 214, Certificate of Release or Discharge from Active Duty, reflects that he served in the Republic of Vietnam from September 9, 1971 to April 8, 1972. The veteran was awarded the Vietnam Service Medal and the Vietnam Combat Medal with 60 device. Hence, it has been established that the veteran served in the Republic of Vietnam during the Vietnam Era and exposure to Agent Orange may be conceded. The medical evidence of record reflects that the veteran currently has benign prostatatic hypertrophy with bladder outlet obstruction, synovial chondromatosis of the left knee, X-ray evidence of minimal narrowing of the medial joint space compartments of the knees, and X-ray evidence of hypertrophic spurring on the posterior aspect of both calcanei of the feet. As mentioned above, 38 C.F.R. § 3.309(e) lists certain diseases for which service connection may be presumed due to exposure to herbicide agents, however, none of the aforementioned disabilities are included in that list. Specifically, the Board notes that the veteran does not have renal cancer, a disease presumptive to herbicide exposure, and has never been diagnosed with renal cancer or other disability of the kidneys deemed presumptive to herbicide exposure. Since service connection may not be allowed for the aforementioned kidney disability, bilateral knee disability, or bilateral foot disability on a presumptive basis, the veteran must show that these disabilities were incurred in or aggravated by service on a direct nonpresumptive basis. Direct service connection Kidney disability, bilateral knee disability, bilateral foot disability With regard to direct service connection, service medical records do not reflect any treatment for the veteran's kidneys, knees or feet. As noted above, VA and private treatment records, dating from 1993 to 2003, disclose that the veteran has been diagnosed with benign prostatic hypertrophy with bladder outlet obstruction, synovial chondromatosis of the left knee, X-ray evidence of minimal narrowing of the medial joint space compartments of the knees, and X-ray evidence of hypertrophic spurring on the posterior aspect of both calcanei of the feet. However, the record does not include any competent medical evidence that any of the aforementioned disabilities are etiologically related to the veteran's active military service, to include exposure to Agent Orange. In this regard, when examined by VA in October 2002 and April 2003 the examiners specifically concluded that the aforementioned disabilities were not found during service, had originated several years after service discharge and were not etiologically related to the appellant's service, to include exposure to Agent Orange. As such, service connection for a kidney disability, bilateral knee disability, and bilateral foot disability may not be granted. To the extent that the veteran offers his own statements to demonstrate a causal relationship between the aforementioned disabilities on appeal and his active military service, to include exposure to Agent Orange, the Board notes that, as a lay person he is not capable of opining on matters requiring medical knowledge, such as medical causation. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, his opinion is not sufficient to establish service connection for the disabilities on appeal. The Board points out that pursuant to the statutes cited above, a great amount of scientific effort, over a number of years, has been exerted in research and analysis of the Agent Orange issue. See The Agent Orange Act of 1991, supra, at section 3, which mandated that the National Academy of Sciences (NAS) "re view and evaluate the available scientific evidence regarding associations between diseases and exposure to dioxin and other chemical compounds in herbicides." In pertinent part, "[a]fter reviewing 6,420 scientific or medical articles, and selecting approximately 230 epidemiologic studies for detailed analysis, consulting with outside experts, and conducting public hearings," NAS issued a report entitled Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam, on July 27, 1993, which found that a relationship existed between exposure to herbicidal agents and the development of only certain diseases. See 59 Fed. Reg. at 342 (1994). That NAS review was relied upon in the determination, by the Secretary of Veterans Affairs, that there is no positive association between exposure to herbicides and any disorder not listed in the governing regulations. Id. The Board concludes there is no justification or need for referral for an opinion in this case. In light of the effort by the NAS, under the aegis of the Agent Orange Act and at the request of the Secretary, there would be no useful information gained, and no benefit to the veteran, in referral for an opinion. Additionally, since there is no evidence of any type of treatment for the disabilities on appeal during the veteran's active military service, any opinion relating his current disabilities to service would be based solely on history as provided by the veteran, as opposed to objective documentation. LaShore v. Brown, 8 Vet. App. 406, 409 (1995). For this reason, the Board finds that there is no basis for obtaining a VA opinion regarding the etiology of the veteran's currently manifested disabilities, as there is no reasonable possibility that such an opinion could substantiate his claims. See 38 U.S.C.A. § 5107 (West Supp. 2002). Since the veteran's kidney disability, bilateral knee disability, and bilateral foot disability were not shown until many years after his discharge from service, have has not been linked by competent medical evidence to service, and are not disabilities disability for which service connection may otherwise be presumed, a basis upon which to grant service connection for these disabilities has not been presented. Accordingly, the preponderance of the evidence is against the claim, and the veteran's appeal with respect to the aforementioned disabilities is denied. 2. Right wrist and Right hand disabilities In this case, service medical records are completely negative for findings or diagnoses of any right wrist or right hand disability. While the veteran maintains that he had a ganglion cyst removed from the back of his hand at Fort Stewart, Georgia in 1973, a search by NPRC for these reports was negative. While the clinical evidence of record reflects that the veteran has a two inch long scar on the dorsum of the right wrist at the junction of the carpometacarpal joints and short scar on the volar aspect of the palm in the mid- palmar crease of the right hand, the record is devoid of any orthopedic disability of the right hand and wrist. Indeed, the VA examiner specifically concluded that there was no objective evidence of a disability of the right hand and right wrist. As indicated above, Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service or a service-connected disability), there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, service connection for a right wrist disability and right hand disability, to include as secondary to exposure to Agent Orange, must be denied because the first essential criterion for a grant of service connection-evidence that a "disability" resulting therefrom currently exists-has not been met. Where, as here, there is no competent and objective evidence of current right wrist or right hand disability, there is nothing upon which to predicate a grant of service connection. Thus, the preponderance of the evidence is against the claims for service connection for right wrist and right hand disabilities to include as secondary to exposure to Agent Orange, and the claims must be denied. Conclusion In reaching its decision, the Board has considered the veteran's assertions that he currently has right hand and right wrist disabilities. However, as a layman without the appropriate medical training and expertise, he is not competent to render a probative opinion on a medical matter- such as whether he suffers from current right hand and right wrist disabilities, or whether there is a medical relationship between the claimed right wrist and right hand disabilities and service, to include exposure to Agent Orange. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board also has considered the benefit-of-the-doubt doctrine; however, as the evidence is not in relative equipoise with respect to the claims, that doctrine is not for application in this appeal. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a kidney disability, bilateral knee disability, bilateral foot disability, right hand disability, and right wrist disability is denied. REMAND With regards to the veteran's service-connected bilateral hearing loss, the veteran maintains that he is entitled to an initial compensable evaluation. A review of the competent clinical evidence of record reflects that the veteran was last evaluated by VA for his service-connected bilateral hearing loss in April 2002. In his substantive appeal, received by the RO in December 2002, the veteran requested that he undergo an additional VA audiological examination because he felt that the April 2002 VA examination was inadequate. In this regard, he maintained that the VA examiner in April 2002 accused him of trying to cheat and lie during the examination. Therefore, prior to the final appellate review of the claim, the veteran should be afforded an additional VA audiological examination to determine the current severity of the service-connected bilateral hearing loss, as described below. Accordingly, this case is hereby REMANDED to the RO for the following action: 1. The RO should arrange for the veteran to undergo a VA audiological examination by a physician with appropriate expertise to determine the extent and severity of the veteran's service-connected bilateral hearing loss. All indicated studies should be performed and all findings should be reported in detail. Any other diagnostic studies deemed necessary by the examiner should also be accomplished. Puretone thresholds at 1000, 2000, 3000, and 4000 Hertz should be recorded for each ear, and a puretone threshold average derived for each ear in accordance with 38 C.F.R. § 4.85(d) (2002). The examiner should also provide an opinion concerning the impact of the veteran's bilateral hearing loss disability on his ability to work. The rationale for all opinions expressed should be provided. The veteran's claims file, including a copy of this remand, should be made available to the examiner for review. The examination report must be typed. 2. After the indicated development has been accomplished, the RO should readjudicate the issue of entitlement to an initial compensable evaluation for bilateral hearing loss with consideration of all additional evidence received since issuance of the Statement of the Case on June 19, 2003. Consideration should also be given to whether any "staged" rating is warranted. Fenderson v. West, 12 Vet. App. 119 (1999). If the determination of the issue on appeal remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and given an appropriate period of time in which to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2