Citation Nr: 0532128 Decision Date: 11/29/05 Archive Date: 12/07/05 DOCKET NO. 04-25 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased (compensable) disability rating for service-connected residuals of adenocarcinoma of the prostate, status post surgical resection. 2. Entitlement to service connection for a respiratory condition, claimed as due to exposure to asbestos. 3. Entitlement to service connection for basal cell carcinoma, claimed as due to exposure to herbicides. 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from January 1967 to January 1969. Service in Vietnam is indicated by the evidence of record. In July 2002, the veteran filed a claim of entitlement to service connection for prostate cancer. In a September 2002 statement, the veteran added claims of entitlement to service connection for a respiratory condition, basal cell carcinoma and hearing loss. In a May 2003 rating decision, the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (the RO) granted service connection for status post prostatectomy for adenocarcinoma of the prostate gland; a noncompensable (zero percent) disability rating was assigned. The other claims were denied. The veteran initiated an appeal of the May 2003 decision, which was perfected with the timely submission of his substantive appeal (VA Form 9) in May 2004. The issues of entitlement to service connection for basal cell carcinoma, claimed as due to exposure to herbicides, and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. Issue not on appeal The May 2003 RO rating decision also denied service connection for, chronic lymphocytic leukemia, and the veteran appealed. However, service connection for chronic lymphocytic leukemia was granted by the RO in an April 2004 rating decision. Since the claim was granted, the appeal as to that issue has become moot. The veteran has not, to the Board's knowledge, expressed dissatisfaction with that decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. FINDINGS OF FACT 1. Other than erectile dysfunction which has been separately compensated, the veteran currently has no residuals of adenocarcinoma of the prostate, status post surgical resection. 2. The competent medical evidence of record indicates that a respiratory condition does not currently exist. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable disability rating for residuals of adenocarcinoma of the prostate, status post surgical resection, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527 (2005). 2. Service connection for a respiratory condition is not warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that his service-connected residuals of adenocarcinoma of the prostate, status post surgical resection should have a compensable disability rating. He is also seeking entitlement to service connection for a respiratory condition. As is discussed elsewhere in this decision, the remaining two issues on appeal are being remanded for additional evidentiary development. In the interest of clarity, the Board will first discuss certain preliminary matters. The issues on appeal will then be analyzed and decisions rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (the VCAA) [codified as amended at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107]. The VCAA eliminated the former statutory requirement that claims be well grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Regulations implementing the VCAA have been enacted. See 66 Fed. Reg. 45,630 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2005)]. The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. The VCAA is accordingly applicable to this case. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The Board has carefully considered the provisions of the VCAA and the implementing regulations in light of the record on appeal, and for reasons expressed immediately below finds that the development of the issues has proceeded in accordance with the provisions of the law and regulations. The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2005). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claims. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed in the April 2004 statement of the case (SOC) of the relevant law and regulations pertaining to his claims. Specifically, the April 2004 SOC detailed the evidentiary requirements for service connection pursuant to 38 C.F.R. § 3.303 and the evidentiary requirements for an increased rating pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7527 (2005), the diagnostic code under which the veteran's service-connected prostate disability is currently evaluated. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claims in a letter dated November 14, 2002, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, he was advised that VA would obtain relevant medical records, employment records and records from other Federal agencies, including military service records and VA treatment records. He was also informed that VA would, on his behalf, make reasonable efforts to obtain relevant private medical records. The veteran was asked to "complete the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, and we will request those records for you." The veteran was, however, informed that "you must give us enough information about these records so that we can request them from the person or agency who has them. It's still your responsibility to support your claim[s] with appropriate evidence." The veteran was told that his service medical records had been obtained, and that records from E.A., M.D. had been requested on his behalf. Additionally, the veteran was asked to complete a list of questions in relation to his claim of asbestos exposure in service. Finally, the November 2002 VCAA letter requested: "Tell us about any additional information or evidence that you want us to try to get for you. Send us the evidence we need as soon as possible." The Board believes that this complies with the requirements of 38 C.F.R. § 3.159 (b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In short, the record indicates that the veteran received appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claims. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2005). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating them. In particular, the RO has obtained the veteran's service medical records and reports of private and VA medical treatment, which will be discussed below. Additionally, the veteran was provided a VA examination in March 2003. The report of the medical examination reflects that the examiners recorded the veteran's past medical history, noted his current complaints, conducted appropriate physical examination and rendered appropriate diagnoses and opinions. Accordingly, the Board finds that under the circumstances of this case, the VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA need be undertaken on the veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2005). The veteran and his representative have been accorded the opportunity to present evidence and argument in support of his claims. The veteran declined the option of a personal hearing on his May 2004 substantive appeal. Accordingly, the Board will proceed to a decision on the merits as to two of the issues on appeal. 1. Entitlement to an increased (compensable) disability rating for service-connected residuals of adenocarcinoma of the prostate, status post surgical resection. Pertinent law and regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2005). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. Fenderson considerations The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Specific rating criteria The veteran is currently assigned a noncompensable evaluation for his service-connected residuals of adenocarcinoma of the prostate, status post surgical resection, under 38 C.F.R. § 4.115b, Diagnostic Code 7527 [prostate gland injuries, infections, hypertrophy, postoperative residuals]. Under Diagnostic Code 7527, prostate gland injuries, infections, hypertrophy, postoperative residuals are to be rated as voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 8100 (2005). Voiding dysfunction: 60 % Continual Urine Leakage, Post Surgical Urinary Diversion, Urinary Incontinence, or Stress Incontinence: Requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day; 40 % Requiring the wearing of absorbent materials which must be changed 2 to 4 times per day; 20 % Requiring the wearing of absorbent materials which must be changed less than 2 times per day. Urinary tract infection: Poor renal function: Rate as renal dysfunction. 30% Recurrent symptomatic infection requiring drainage/frequent hospitalization (greater than two times/year), and/or requiring continuous intensive management. 10% Long-term drug therapy, 1-2 hospitalizations per year and/or requiring intermittent intensive management. 38 C.F.R. Part 4, § 4.115a (2005). The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2005). Analysis Assignment of diagnostic code The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Code 7527 applies specifically postoperative residuals of the prostate gland. There is no other diagnostic code which rates the prostate gland. The veteran has suggested no other diagnostic code and the Board cannot identify a diagnostic code that would be more appropriate to the veteran's diagnosed residuals of adenocarcinoma of the prostate, status post surgical resection, and his claimed symptoms. Therefore, the Board will evaluate the veteran's service-connected prostate disability under Diagnostic Code 7527. Schedular rating Turning to Diagnostic Code 7527, the question becomes whether voiding dysfunction or urinary tract infection is more predominant in regards to the veteran's residuals of adenocarcinoma of the prostate, status post surgical resection. The Board will discuss each in turn. In terms of voiding dysfunction, there is no evidence that the veteran wears any absorbent materials that must be changed less than two times per day. During the veteran's March 2003 VA genitourinary examination, the veteran specifically denied the use of absorbent materials and any urinary incontinence. He indicated to the examiner that he had to rush to the bathroom if he had any urgency of urination; however, both urinary urgency and dysuria were specifically denied by the veteran in subsequent records from Saint Anthony's Medical Center Emergency Department dated in September 2003 and November 2003. Moreover, there is no indication from the medical evidence that the veteran has ever used an appliance to control urination. In terms of urinary tract infection, there is no evidence that the veteran has ever been hospitalized for an urinary tract infection, nor has he ever required intermittent intensive management for an urinary tract infection. The veteran specifically denied use of medication to control his urine during the March 2003 VA examination. Finally, there is no indication in the medical evidence of poor renal function to rate the veteran under renal dysfunction. The Board notes that in a June 2003 statement, the veteran indicated that he had urinary incontinence that requires medication. However, none of the medical evidence of record indicates that the veteran is taking medication to control his urine. Moreover, as noted above, the veteran specifically denied urinary urgency and dysuria in September 2003 and November 2003 at St. Anthony's Medical Center. Based on the medical evidence to the contrary, the Board finds these statements from the veteran to be lacking probative value. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein [in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility, and therefore the probative value, of proffered evidence in the context of the record as a whole]. The only other documented complaints from the veteran concerning his service-connected residuals of adenocarcinoma of the prostate, status post surgical resection involve sexual dysfunction and abdominal pain. The RO has separately granted service connection for erectile dysfunction secondary to service-connected residuals of adenocarcinoma of the prostate, status post surgical resection, and special monthly compensation based on loss of use of a creative organ pursuant to 38 U.S.C.A. § 1114(k) (West 2002) and 38 C.F.R. § 3.350(a) (2005). Accordingly, those complaints are compensated. [The Board observes in passing that the veteran is in receipt of a 100 percent rating for service-connected chronic lymphocytic leukemia alone.] With respect to abdominal pain, there are of record numerous detailed evaluations of the veteran due to his constant and bitter complaints of agonizing abdominal pain. Numerous possible caused were suggested, but none were clinically identified. For example, Dr. G.L.A., a specialist in Urologic Surgery at the Washington University School of Medicine in St, Louis, Missouri, referred to "vague abdominal pain" and stated "I told [the veteran] that I am at a loss of what to suggest."] D.J.M., M.D stated: "The amount of complaints he has about this, to me, seems out of proportion to what I find on physical examination." In short, despite evaluation by several physicians, no cause for the veteran's claimed abdominal pain has been identified. In any event, there is no medical opinion which indicates that such pain is related to the prostate surgery. The only evidence to that effect emanates from the veteran himself. However, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, in the absence of any competent medical evidence which indicates that the abdominal pain is related to the prostate surgery, the Board will not consider it as part of the service-connected disability. In summary, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the veteran's service-connected residuals of adenocarcinoma of the prostate, status post surgical resection, when analyzed under both voiding dysfunction and urinary tract infection. Fenderson considerations As alluded to above, in Fenderson, supra, the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. In this case, the medical evidence of record does not indicate that the symptomatology of the veteran's service- connected residuals of adenocarcinoma of the prostate, status post surgical resection, has changed significantly since the effective date of service connection, July 10, 2002. Based on the record, the Board finds that a noncompensable disability rating is properly assigned for the entire appeal period. The Board notes in passing that the veteran has not in connection with this appeal indicated, nor presented evidence to support the premise, that his service-connected residuals of adenocarcinoma of the prostate, status post surgical resection, results in marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (2005) [extraschedular rating criteria]. Accordingly, in the absence of the matter being raised by the veteran or adjudicated by the RO, the Board will not address the veteran's entitlement to an extraschedular rating. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) [the Board cannot make a determination as to an extraschedular evaluation in the first instance]; see also Bernard, supra. In any event, the veteran is currently in receipt of a 100 percent schedular rating, plus special monthly compensation, so the matter of an extraschedular rating is moot.. Conclusion In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim for an increased rating for residuals of adenocarcinoma of the prostate, status post surgical resection. The benefit sought on appeal is accordingly denied. 2. Entitlement to service connection for a respiratory condition, claimed as due to exposure to asbestos. Pertinent law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2005). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection presupposes a current diagnosis of the claimed disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion 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. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical-nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. See VAOGCPREC 4-2000. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). In short, with respect to claims involving asbestos exposure, VA 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. M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis The veteran is seeking service connection for a respiratory condition. His essential contention is that his respiratory condition is related to asbestos exposure in service. As discussed above, in general, in order for service connection to be granted three elements must be satisfied: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. With respect to Hickson element (1), there is no evidence of a respiratory condition. The March 2003 VA examiner specifically found "no evidence of lung disease." The veteran has been accorded ample opportunity to present medical evidence in support of his claim; he has failed to do so. See 38 U.S.C.A. § 5107(a) [it is the claimant's responsibility to support a claim for VA benefits]. To the extent that the veteran believes a respiratory condition exists, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as diagnosis, date of onset or cause of a disability. See Espiritu, supra. The statements offered in support of the veteran's claims by him are not competent medical evidence and do not serve to establish the existence of a current disability. In short, Hickson element (1) is not met, and the claim fails on this basis alone. For the sake of completeness the Board will address the remaining two elements. Turning to Hickson element (2), in-service disease or injury, there is no evidence of a pulmonary or respiratory disorder in service. With respect to injury, the claimed injury is exposure to asbestos. As detailed above, there is no presumption of asbestos exposure. See Dyment, supra. Review of the veteran's service medical records do not indicate of exposure to asbestos in service. His MOS was equipment storage specialist. There is no indication of activities such as mining, milling, work in shipyards, etc., that would allow for the Board to find that there was asbestos exposure in service. The veteran, for his part, has not explained how he was exposed to asbestos in service. The RO, in the above- mentioned November 2002 VCAA letter, asked the veteran to submit answers to five questions in order to process his claim for asbestos exposure. These questions concerned the veteran's in-service duties, smoking history and post-service employment. Though subsequent statements mentioned the veteran's in-service duties, he failed to respond to the majority of these questions. The veteran has been accorded ample opportunity to present evidence supporting asbestos exposure in service; he has failed to do so. See 38 U.S.C.A. § 5107(a), supra. Accordingly, Hickson element (2) also has not been met, and the claim fails on that additional basis. Finally, with respect to Hickson element (3), no medical nexus opinion is of record. It is obvious that in the absense of a current disability and in-service injury or disease, a medical nexus opinion would be an impossibility. Cf. Charles v. Principi, 16 Vet. App. 370, 374 (2002). As noted above, the veteran is not competent to offer a medical opinion attributing a disability to service. See Espiritu, supra; see also Voerth v. West, 13 Vet. App. 117, 119 (1999) [unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service]. Therefore, Hickson element (3), medical nexus, is also not met for the respiratory condition claim. In conclusion, for reasons and bases expressed above and contrary to the assertions of the veteran's represenative, the Board concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for a respiratory condition. The benefit sought on appeal is accordingly denied. ORDER Entitlement to an increased disability rating for residuals of adenocarcinoma of the prostate, status post surgical resection, is denied. Entitlement to service connection for a respiratory condition is denied. REMAND 3. Entitlement to service connection for basal cell carcinoma, claimed as due to exposure to herbicides. 4. Entitlement to service connection for bilateral hearing loss. The veteran seeks entitlement to service connection for basal cell carcinoma and bilateral hearing loss. For reasons expressed immediately below, the Board believes that these issues must be remanded for further evidentiary development. Nexus opinion With regards to the veteran's basal cell carcinoma claim, the March 2003 VA examiner noted he "failed to find any evidence in his record for basal cell carcinoma." However, there is current medical evidence of basal cell carcinoma in private treatment records dated in May 2002. This case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. These questions concern the relationship, if any, between the veteran's current basal cell carcinoma and his period of active service from January 1967 to January 1969, including presumed herbicide exposure in service. This must be addressed by an appropriately qualified physician. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2005) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Private medical records After receipt of VCAA notice in November 2002, the veteran submitted a release form for private treatment records in regards to his bilateral hearing loss claim. Records from audiologist K.L. were submitted by the veteran himself. However, it does not appear that D.R.I., M.D. has been contacted in regards to any records concerning the veteran's hearing loss disability. These records have not been associated with the veteran's claims folder, and may contain information pertinent to the veteran's claim for entitlement to service connection for bilateral hearing loss. The Board believes that before additional action is taken on the claim, the missing medical records should be obtained an associated with the record. In view of the foregoing, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following actions: 1. VBA should contact the veteran in order to ascertain whether he wishes to continue to pursue this appeal in light of the award of a 100 percent disability rating for chronic lymphocytic leukemia, as well as the award of special monthly compensation based on loss of use of creative organ. 2. If the veteran responds in the affirmative, VBA should take appropriate steps to secure any medical treatment records from Dr. D.R.I. in Festus, Missouri. 3. The veteran's VA claims folder should then be referred to a physician with appropriate expertise. The examiner should review the veteran's claims folder and render an opinion, in light of the veteran's entire medical history, as to the relationship, if any, between any current basal cell carcinoma and the veteran's military service, with specific consideration of presumed herbicide exposure in service. If the reviewing physician believes that physical examination and/or diagnostic testing of the veteran is necessary, such should be scheduled. A copy of the nexus opinion should be associated with the veteran's VA claims folder. 4. VBA should then review the evidence of record, including any additional evidence obtained, and readjudicate the veteran's claims for entitlement to service connection for basal cell carcinoma and bilateral hearing loss. If the claims remain denied, VBA should provide the veteran with a SSOC. The case should then be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs