Citation Nr: 0427482 Decision Date: 10/05/04 Archive Date: 10/12/04 DOCKET NO. 02-11 043A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a respiratory disorder as a result of asbestos exposure. 2. Entitlement to service connection for type II diabetes mellitus as a result of exposure to herbicides. 3. Entitlement to service connection for vision problems as a result of exposure to herbicides. 4. Entitlement to service connection for hypertension as a result of exposure to lead-based paint. 5. Entitlement to service connection for a digestive disorder as a result of exposure to lead-based paint. 6. Entitlement to service connection for memory and concentration problems as a result of exposure to lead-based paint. 7. Entitlement to service connection for a nerve disorder as a result of exposure to lead-based paint. 8. Entitlement to service connection for muscle and joint pain as a result of exposure to lead-based paint. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The veteran served on active duty from April 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. FINDINGS OF FACT 1. The RO has notified the veteran of the evidence needed to substantiate his claims, and has obtained and fully developed all evidence necessary for the equitable disposition of the claims. 2. There is no competent medical evidence of record showing that the veteran's respiratory disorder is related to service, to include asbestos exposure in service. 3. The veteran did not serve in the Republic of Vietnam. 4. There is no competent medical evidence of record showing that the veteran's type II diabetes mellitus, with associated visual problems, is related to service, to include herbicide exposure in service. 5. There is no competent medical evidence of record showing that the veteran's hypertension is related to service or had its onset within one year of service. 6. No competent medical evidence shows that the veteran has a current disability involving a digestive disorder. 7. The veteran's memory and concentration problems are attributable to diagnoses of major depression and generalized anxiety disorder, neither of which has been medically linked to service. 8. The veteran has been diagnosed with bilateral carpal tunnel syndrome, which has not been medically linked to service. 9. The veteran's muscle and joint pain has been identified as arthralgia. 10. There is no competent medical evidence of record showing that the veteran's degenerative joint disease of the cervical and lumbar spine is related to service. CONCLUSIONS OF LAW 1. A respiratory disorder was not incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.303 (2003). 2. Type II diabetes mellitus, with secondary vision problems, was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.126(a), 3.156(a), 3.303, 3.307, 3.309 (2003). 3. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.303, 3.307, 3.309 (2003). 4. A digestive disorder was not incurred in or aggravated by service. 38 U.S.C.A §§ 1110 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.156(a), 3.303 (2003). 5. A disability manifested by memory and concentration problems was not incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.303 (2003). 6. A nerve disorder was not incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.303 (2003). 7. A disability manifested by muscle and joint pain was not incurred in or aggravated by service. 38 U.S.C.A §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking service connection for a respiratory disorder, type II diabetes mellitus, vision problems, hypertension, a digestive disorder, memory and concentration problems, a nerve disorder, and a disability manifested by muscle and joint pain. In the interest of clarity, the Board will initially discuss whether these issues have been properly developed for appellate purposes. The Board will then address the issues on appeal, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 Prior to proceeding with an examination of the merits of the claims, the Board must first determine whether the veteran has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claims, and whether the claims have been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. §§ 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, the VA is required to notify a claimant of the evidence and information necessary to substantiate a claim, whether the claimant or the VA is expected to provide the evidence and request the claimant to submit any other evidence in his or her possession that pertains to the claim. Id. The United States Court of Appeals for Veterans Claims (Court) recently held that compliance with 38 U.S.C.A. § 5103 required that the VCAA notice requirement be accomplished prior to an initial unfavorable determination by the agency of original jurisdiction ("AOJ" or "RO"). See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). In the present case, the veteran was notified of the VCAA in a July 2001 letter prior to the RO's initial adjudication of his claim for service connection for a respiratory disorder in October 2001. The veteran was also notified of the VCAA in a January 2003 letter prior to the RO's initial adjudication of his other seven claims for service connection in February 2003. In both letters, the veteran was notified of the VCAA and was given the opportunity to submit information and evidence in support of his claims. Thus, all due process concerns have been satisfied. The Court in Pelegrini II also held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request, or tell the claimant to provide, any evidence in the claimant's possession that pertains to the claim. The new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). See VAOPGCPREC 01-2004. The letters by the RO essentially advised the veteran to identify and submit evidence in support of his claims. Although the VCAA notice letters do not specifically contain the fourth element, the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claims throughout development of the case at the RO. See Bernard, supra; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The VA must also make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. There does not appear to be any outstanding medical records that are relevant to this appeal, as the RO obtained all medical records identified by the veteran and his representative. The Board has considered the veteran's argument that he should be afforded additional medical examinations to obtain opinions as to whether the claimed disabilities on appeal are related to service, to include exposure to herbicides, asbestos and lead-based paint. However, the Board finds no basis upon which to direct the requested medical examination. The VCAA states that VA shall provide a medical examination when such examination may substantiate entitlement to the benefits sought. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4), (d). However, there is no competent evidence indicating that the veteran was exposed to the asserted substances; if he was so exposed to what degree; or competent medical evidence that the veteran had any of the claimed disabilities in, or as a result of active service. In this circumstance, there is no duty on the part of VA to provide a medical examination, because as in Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the veteran has been advised of the need to submit competent medical evidence indicating that he has the disorders in question, and further substantiating evidence suggestive of a linkage between his active service and the current disorders, if shown. The veteran has not done so, and no evidence thus supportive has otherwise been obtained. Here, as in Wells, the record in its whole, after due notification, advisement, and assistance to the veteran under the VCAA, does not contain competent evidence to suggest that the disorders are related to the veteran's military service. Therefore, examiners could do no more than review the claims file and record the veteran's history, which would not constitute medical nexus evidence given the facts of this case. Leshore v. Brown, 8 Vet. App. 406, 409 (1995). While a physician is competent to render medical opinions, such competence does not extend to the factual underpinnings of the opinion. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]; see also Jones (Stephen) v. West, 12 Vet. App. 383 (1999); [Pre-VCAA case, where a veteran with service-connected PTSD sought service connection for the residuals of a broken leg, sustained in a motorcycle accident. His treating physician opined that "thrill seeking behavior," typical in PTSD patients, in part had caused the veteran's recklessness. However, evidence was of record indicating that the veteran had told police officers and bystanders immediately after the accident that he had exercised care when riding his motorcycle, and that a car struck him as he was attempting to negotiate a turn. The Court found the physician's opinion not sufficient to well- ground the claim under then applicable law, because although the veteran was competent to testify as to the sequence of events of the accident, the physician was not an eyewitness to the accident, so that any opinion regarding what actions or sequence of events caused the accident was outside the scope of his competence. Id. at 386]. Thus, remanding the case to afford the veteran additional medical examinations would only result in unnecessarily imposing an additional burden on VA with no benefit flowing to the veteran. Therefore, the record is complete and the case is ready for appellate review. II. Service Connection for a Respiratory Disorder as a Result of Asbestos Exposure The veteran claims that he has a respiratory disorder as a result of asbestos exposure while serving aboard ships in the U.S. Navy. For the reasons set forth below, the Board finds that the preponderance of the evidence is against the veteran's claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2003). In addition, certain chronic diseases may be presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. See 38 C.F.R § 3.303(b) (2003). There is no statute specifically dealing with asbestos and service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the veteran's claim for service connection for asbestos-related disease under these administrative protocols using the criteria set forth below. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV-3 (January 31, 1997). An asbestos- related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must also determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). The RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In this case, the record shows that the RO complied with these procedures. The veteran was asked about his history of alleged exposure to asbestos in service as well as any possible exposure both prior to and after service. Several VA medical professionals also reviewed the claims folder and offered an opinion concerning a possible relationship between the veteran's asbestos exposure in service and the development of his respiratory disease. Therefore, VA has satisfied its duty to assist the veteran in developing this claim. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See M21-1, Part VI, 7.21(a)(1). VA recognizes that persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). The veteran claims that he developed a respiratory disorder as a result of asbestos exposure during his U.S. naval service. He argues that he worked on, and slept beneath pipes wrapped with asbestos while aboard various ships. He also said he was unaware of any other asbestos exposure before or after service. In correspondence dated July 2001, the National Personnel Records Center (NPRC) indicated that ships during the veteran's period of active naval service required heat surfaces to be covered with an insulating material that was probably made from an asbestos product. However, it was noted that the probability of exposure to asbestos was minimal and that it was not possible to confirm that the veteran was or was not exposed to asbestos in service. The veteran's service medical records made no reference to respiratory problems. In fact, no respiratory problems were identified until many years after service. The veteran was hospitalized by VA in March 2001 for complaints of progressive dyspnea for over two months. The veteran claimed that he had been exposed to asbestos in the 1970's and reported a history of exposure to second-hand smoke from managing a bar for approximately twenty years. A CT scan of the chest revealed calcifications consistent with granulomas. A pulmonary function study revealed moderate obstructive and restrictive pulmonary disease. The diagnosis was COPD, in exacerbation. Pulmonary function studies performed in May and June 2002 listed diagnoses of asbestosis and asbestos exposure. However, a CT scan of the chest revealed no pulmonary pathology. The diagnostic impression was dyspnea on exertion of unclear etiology. The veteran was examined by VA in September 2001 to determine the nature and etiology of his respiratory problems. The examiner reviewed the veteran's claims file, which disclosed potential asbestos exposure in service from sleeping below pipes covered with asbestos and working on aircraft carriers. However, the veteran denied any history of smoking. The examiner noted that the veteran had been employed in retail after service, which would not have exposed him to other hazardous materials that could cause lung damage. However, the examiner did not mention the veteran's history of exposure to second-hand smoke from managing a bar. The examiner pointed out that X-rays performed in January and March 2001 were negative. A CT scan in March 2001 was also negative except for old granulomatous disease. A pulmonary function study revealed mild obstructive and mild restrictive lung disease. The examiner concluded with diagnoses of moderate restrictive lung disease and moderate obstructive lung disease. That report also noted that chest X-rays were sent to a VA physician who was an expert in the interpretation of asbestos damage. The physician stated: " In regard to your specific question, there is no chest radiographic evidence of asbestosis (there is no discernible interstitial lung disease). There is some mild pleural based thickening, but this is almost certainly due to abundant extrapleural fat and not true pleural thickenings." Another VA examiner reviewed the claims file in February 2002 and found no evidence that the veteran had asbestos lung disease. In particular, the examiner noted that the veteran's physical examination was normal, with no X-ray evidence of asbestos exposure. A pulmonary function test revealed mild obstructive lung disease. The examiner concluded that the etiology of his dyspnea was not clear. In a March 2003 addendum report, the examiner stated that X-rays did not reveal any evidence of asbestos exposure. The examiner's opinion is consistent with a pulmonary function test performed in March 2003 which revealed a diagnosis of COPD. The veteran was afforded a VA general medical examination in January 2004 in connection with his claim for nonservice- connected pension benefits. The examiner noted the veteran's three to four year history of shortness of breath and an infrequent productive cough. Pulmonary function testing at that time revealed moderate obstructive lung disease and moderate restrictive lung disease. Chest X-rays were negative, and the diagnoses included moderate obstructive and restrictive lung disease. The preponderance of the evidence is against the veteran's claim for service connection for a respiratory disorder. Firstly, although the veteran may have been exposed to asbestos in service, there is no evidence to suggest the level of such exposure, and the mere supposition of such exposure is not sufficient to find that the veteran was so exposed under the benefit-of-the-doubt doctrine. The law provides in this regard that a reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded. 38 C.F.R. §§ 3.102, 4.3 (Italics added). Moreover, even were the veteran to be presumed to have been so exposed, such a finding would not, in conjunction with other evidence, be sufficient to raise the evidence in the claim as a whole to a state of equipoise - the veteran is required to present medical evidence showing that his in- service exposure resulted in a current respiratory disorder. Indeed, although the record contains diagnoses of asbestosis and asbestos exposure, several VA examiners reviewed the claims file, including those diagnoses, and found no objective evidence of asbestosis or any other asbestos related disease. Instead, pulmonary function and radiographic testing revealed obstructive and restrictive lung disease. The Board places greater probative value on these opinions, as they were based on a review of the claims file and supported by sound rationale. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (Observing that "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches," and "as is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators."). Neither obstructive lung disease nor restrictive lung disease were shown until many years after service, and no competent medical evidence of record indicates that either disorder is related to service, to include asbestos exposure in service. Indeed the only evidence in support of the veteran's claim is his own lay statements. However, where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu, 2 Vet. App at 492. Since the record does not reflect that the veteran possesses the medical training and expertise necessary to render an opinion as to the cause of his respiratory disorder, his lay statements are of little probative value and cannot serve as a basis for granting his claim. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). The Board concludes that the preponderance of the evidence is against the veteran's claim for service connection for a respiratory disorder as a result of asbestos exposure. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, because the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Service Connection for Type II Diabetes Mellitus, with Secondary Vision Problems, as a Result of Exposure to Herbicides The veteran claims that he has type II diabetes mellitus, with secondary vision problems, as a result of exposure to herbicides in service. For the reasons set forth below, the Board finds that the preponderance of the evidence is against the veteran's claim. Where a veteran served 90 days of more during a period of war or during peacetime service after December 31, 1946, and a chronic disease, such as diabetes mellitus, becomes manifest 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition to these provisions, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed in 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that he or she was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to Agent Orange during active military, naval, or air service, certain specified diseases shall be service- connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). Thus, service connection may be presumed for residuals of herbicide exposure by showing two elements. First, a veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). "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. 38 C.F.R. § 3.307(a)(6)(iii). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (West 2002), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975, and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307(a)(6)(iii). VAOPGCPREC 27-97 (July 23, 1997). Second, the veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). Even if a veteran is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). Presumptive service connection due to herbicide exposure is not warranted for the veteran's type II diabetes mellitus, with secondary visual problems. While type II diabetes mellitus is one of the specific diseases listed in 38 C.F.R. § 3.309(e), the veteran did not have "service in the Republic of Vietnam" as defined by the applicable legal criteria. The veteran's DD Form 214 indicates that he was awarded the Vietnam Service Medal (VSM) with 1 Bronze Star. However, the VSM was awarded to all members of the Armed Forces of the United States serving in Vietnam and contiguous waters or airspace thereover, as well as for those who served in Thailand, Laos or Cambodia while serving in direct support of operations in Vietnam. See Manual of Military Decorations and Awards, 6.5 (Department of Defense Manual 1348.33-M, September 1996). Therefore, the VSM does not, per se, verify service in Vietnam. The veteran's service personnel records show that he served aboard the USS KEARSARGE from July 1969 until February 1970, when he was transferred to the USS ATKRON in Whidbey Island, Washington. The veteran submitted records from the internet concerning the USS KEARSARGE. However, none of these records show that the USS KEARSARGE visited Vietnam while the veteran was onboard. These records show that the ship was stationed in the South China Sea in 1964, prior to the veteran's service, and returned to Long Beach, California in September 1969. In correspondence dated January 2003, NPRC stated that it had conducted an extensive and thorough search but was unable to locate records showing that the veteran served in Vietnam. NRPC explained that the records did not exist, that NPRC did not have them, or that further efforts to locate them at NPRC would be futile. The official record generated by the service department, as well as the efforts of the NPRC are highly probative as to the circumstances of the veteran's claimed service. Having been provided by an agency of the U.S. Government, the Board is assured of the authenticity of these original records. In this regard, this finding is consistent with the well- recognized reliance placed by VA upon service department and NPRC determinations. See Sarmiento v. Brown, 7 Vet. App. 80, 83 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. §§ 3.203(a), (c). Thus, since the evidence does not demonstrate that the veteran served in Vietnam, there is no presumption of exposure to Agent Orange or other herbicides. Since presumptive service connection for residuals of herbicide exposure is not warranted, service connection can only be established with proof of actual direct causation. In other words, medical evidence must show that the veteran's diabetes mellitus, with secondary vision problems, had it onset either in service or during the one-year presumptive period after service. In this case, however, no such evidence has been submitted. The veteran's service medical records made no reference to a diabetes, vision problems, or abnormal findings concerning the veteran's blood sugar. The veteran's vision was 20/20 in both eyes at enlistment and at discharge. In fact, type II diabetes mellitus was first diagnosed in 2001, approximately thirty years after the veteran's separation from active duty. A March 2001 VA hospitalization report listed a diagnosis of non-insulin dependent diabetes mellitus, newly diagnosed. Since then, the veteran has received periodic VA treatment for his type II diabetes mellitus. However, none of these records contains a medical opinion that this condition is related to service, to include herbicide exposure in service. The Board therefore concludes that the preponderance of the evidence is against the veteran's claim for service connection for type II diabetes mellitus, with secondary vision problems. Despite the veteran's statements that his type II diabetes mellitus is related to service, the record does not reflect that he is competent to provide a medical opinion concerning the presence or etiology of a such a disability. See Heuer, supra. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, because the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Hence, the appeal is denied. IV. Service Connection for Hypertension, a Digestive Disorder, Memory and Concentration Problems, a Nerve Disorder, and Muscle and Joint Pain as a Result of Exposure to Lead-Based Paint The veteran claims that he has hypertension, a digestive disorder, memory and concentration problems, a nerve disorder, as well as muscle and joint pain, as a result of exposure to lead-based paint in service. As initial matters, there is no evidence that the veteran was so exposed to lead- based paint as he contends, and if so, to what degree. Indeed, even were exposure to lead-based paint found, the law does not provide that exposure to lead-based paint provides a presumption with respect the nexus element. Cf. Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative). In other words, the veteran must provide medical evidence of a current disability that was incurred in or aggravated by service. A. Hypertension The veteran's service medical records made no reference to high blood pressure or hypertension. Of particular relevance, the veteran's blood pressure was 112/78 at the time of his discharge physical in December 1970. There is also no evidence of elevated blood pressure readings within one year of the veteran's separation from active duty. Thus, hypertension was not shown in service or during the one-year presumptive period after service. The veteran was first treated for high blood pressure in 2001, thirty years after his separation from active duty, and no medical professional has related the veteran's hypertension to service. VA outpatient treatment records dated since 2001 show treatment for hypertension. While a January 2004 VA examination report also lists a diagnosis of hypertension, none of these records includes a medical opinion which relates the veteran's hypertension to his period of active service, to include exposure to lead-based paint in service. Indeed the only evidence in support of the veteran's claim are the veteran's own lay statements and as noted above the veteran is not competent to render medical opinions. See Heuer, supra. The Board thus concludes that the preponderance of the evidence is against the veteran's claim for service connection for hypertension. The Board has considered the doctrine of reasonable doubt. However, because the preponderance of the evidence is against the veteran's claim, the doctrine is not for application, 38 U.S.C.A. § 5107(b), and the appeal is denied. B. Digestive Disorder The veteran claims that he has a digestive disorder as a result of his claimed exposure to lead-based paint in service. However, no medical evidence shows that the veteran has a current disability involving a digestive disorder. The veteran's service medical records made no reference to digestive problems. The Board also reviewed VA outpatient treatment records dated from 2001 to 2003, none of which lists a diagnosis of a digestive disorder. An October 2002 entry noted the veteran's complaints of rectal bleeding with associated constipation for about a week. However, a digestive disorder was not diagnosed. At his January 2004 VA examination, moreover, the veteran specifically denied digestive problems, and no objective findings were shown. In Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997), the Court held that compensation may only be awarded to an applicant who has a disability existing on the date of the application, and not for a past disability. Since there is no evidence that the veteran suffers from a current disability involving a digestive disorder, his claim for service connection must be denied. See also Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim). Hence, the appeal is denied. C. Memory and Concentration Problems The veteran claims that he has memory and concentration problems as a result of exposure to lead-based paint in service. For the following reasons, the Board find that the preponderance of the evidence is against the veteran's claim. The veteran's service medical records made no reference to psychiatric problems, including memory and concentration problems. Of particular relevance, a psychiatric evaluation in December 1970 at the time of the veteran's separation from active duty was normal. When hospitalized by VA in March 2001 for COPD, the diagnoses also included confusional episodes of undetermined etiology. A family member described these episodes as the veteran talking inappropriately while being argumentative and repetitive. A CT scan of the head was within normal limits. An April 2001 entry noted the veteran's complaints involving a twelve-month history of memory loss. However, no diagnosis was provided. The veteran underwent a psychological evaluation by J.F., Ph.D. in October 2003 to determine his current level of mental health functioning. During the interview, the veteran reported various symptoms involving depression, anxiety, sleep disturbance, a lack of energy, as well as memory and concentration problems. A mental status examination revealed that memory for immediate information was poor and that he had difficulty staying focused and concentrating. The psychologist concluded with diagnoses of major depression, single episode, severe, without psychotic features; and generalized anxiety disorder. However, the psychologist offered no opinion concerning the etiology or date of onset of these disorders. It thus appears that the veteran's memory and concentration problems are attributable to diagnoses of major depression and generalized anxiety disorder no competent medical evidence of a relationship between these disorders and his period of active service. The record indicates that the veteran first reported memory and concentration problems thirty years after service, and that no medical professional has attributed the veteran's depression and anxiety to service. Indeed the only evidence of a relationship between the veteran's complaints of memory and concentration problems and his period service are the veteran's lay statements. Since the record does not reflect that the veteran possesses the medical training and expertise necessary to render an opinion as to the cause of his psychiatric disorders, his lay statements are of no probative value and cannot serve as a basis for granting his claim. See Heuer, 7 Vet. App. at 384. The Board thus concludes that the preponderance of the evidence is against the veteran's claim for service connection for memory and concentration problems. The Board has considered the doctrine of reasonable doubt. However, because the preponderance of the evidence is against the veteran's claim, the doctrine is not for application, 38 U.S.C.A. § 5107(b), and the appeal is denied. D. Nerve Disorder and Muscle and Joint Pain The veteran also claims that he has a nerve disorder as well as muscle and joint pain as a result of asserted exposure to lead-based paint in service. However, the Board finds that the preponderance of the evidence is against the veteran's claim. The veteran's April 1964 entrance physical noted a history of cramps in his legs. The examiner also noted a history of back pain with no apparent injury. However, a clinical evaluation was negative. The remainder of the veteran's service medical records made no further reference to cramps or back pain. The veteran's separation physical also made no reference to a nerve disorder or to muscle and joint pain. VA outpatient treatment records show that the veteran was seen in December 1996 for bilateral arm pain. EMG testing in January 1997 revealed atypical bilateral carpal tunnel syndrome. The veteran was also seen on several occasions in 2001 for chronic low back pain. The March 2001 hospitalization report listed diagnoses of low back pain secondary to osteoarthritis, scoliosis of the spine and degenerative joint disease. However, none of these records includes a medical opinion concerning the etiology or date of onset of the veteran's carpal tunnel syndrome and back disorder. The January 2004 VA examination report noted the veteran's complaints of generalized stiffness throughout the body, particularly the hands, the neck, the lower back, and the right elbow. Following a physical examination, the diagnoses included degenerative joint disease of the cervical and lumbosacral spine and arthralgia of the hands and right elbow. The examiner, however, did not indicate that the veteran's degenerative joint disease was related to service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claims for service connection for a nerve disorder and for muscle and joint pain. First, the Board notes that bilateral carpal tunnel syndrome is the only diagnosed nerve disorder. This condition was first identified twenty-five years after service and has not been medically linked to service. Thus, there is no basis to grant service connection for a nerve disorder. Moreover, the only diagnosis with respect to the veteran's complaints of joint pain includes degenerative joint disease of the cervical and lumbar spine. However, this was diagnosed many years after service and has not been medically lined to service. As to "arthralgia," such is defined as pain in a joint. Dorland's Illustrated Medical Dictionary 140 (28th ed., 1994). Such a symptom is not a disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Hence, service connection for a disability manifested by muscle and joint pain must be denied. The Board concludes that the preponderance of the evidence is against the veteran's claims for service connection for a nerve disorder and for muscle and joint pain. The Board has considered the doctrine of reasonable doubt. However, because the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. See 38 U.S.C.A. § 5107(b). ORDER Service connection for a respiratory disorder as a result of asbestos exposure is denied. Service connection for type II diabetes mellitus as a result of exposure to herbicides is denied. Service connection for vision problems as a result of exposure to herbicides is denied. Service connection for hypertension as a result of exposure to lead-based paint is denied. Service connection for a digestive disorder as a result of exposure to lead-based paint is denied. Service connection for memory and concentration problems as a result of exposure to lead-based paint is denied. Service connection for a nerve disorder as a result of exposure to lead-based paint is denied. Service connection for muscle and joint pain as a result of exposure to lead-based paint is denied. ____________________________________________ VITO A. CLEMENTI Acting 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