Citation Nr: 0812730 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-01 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for schizophrenia (previously evaluated as a personality disorder). 3. Entitlement to service connection for bilateral tinnitus. 4. Entitlement to service connection for a low back disability. 5. Entitlement to service connection for a left ankle disability. 6. Entitlement to service connection for chronic kidney failure. 7. Entitlement to service connection for hypertension. 8. Entitlement to service connection for diabetes mellitus, Type II (DM), to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Jeffrey J. Bunten, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from December 1975 to December 1978, with service in Korea from January 31, 1978 to December 13, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claims. The veteran filed his original claims of entitlement to service connection for bilateral hearing loss and a personality disorder in July 1992. By rating decision in September 1992, the veteran's claims were denied based on lack of current disability for bilateral hearing loss and no evidence in service of a personality disorder. The veteran appealed this decision and, ultimately, the Board denied his claims in August 1998, based on lack of current disability for the bilateral hearing loss claim and lack of chronic psychiatric disability. The December 2004 rating decision reopened the veteran's claims and denied them on the merits. However, to establish jurisdiction over the issues of service connection for bilateral hearing loss and schizophrenia (previously claimed as a personality disorder), the Board must first consider the issue of whether new and material evidence has been submitted to reopen the claims. See 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2007). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3rd 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully under the analysis section, new and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss, but the claim for schizophrenia must be remanded. The veteran participated in a Travel Board hearing with the undersigned Veterans Law Judge in September 2007. A transcript of that proceeding has been associated with the veteran's claims file. The issues of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for schizophrenia and entitlement to service connection for chronic kidney failure 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. The veteran will be informed if any further action on his part is required. FINDINGS OF FACT 1. Evidence received since the August 1998 Board decision is new to the claims file, but does not relate to unestablished facts necessary to substantiate the claim of whether bilateral hearing loss was incurred or aggravated in service, and is not so significant that it must be considered in order to fairly decide the merits of the claim. 2. The veteran does not have current diagnoses of bilateral tinnitus, a low back disability or a left ankle disability. 3. Hypertension is not shown by competent medical evidence to be linked to a disease or injury in service; nor was it manifested within the first post-service year. 4. The veteran is not shown to have served in the Republic of Vietnam during service and he is not been shown to have been exposed to Agent Orange during his service in Korea; there is no medical or scientific evidence linking the veteran's diabetes to service or to claimed in-service Agent Orange exposure. CONCLUSIONS OF LAW 1. New and material evidence has not been submitted for the claim of entitlement to service connection for bilateral hearing loss; the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 2. Bilateral tinnitus was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 3. A low back disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 4. A left ankle disability was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 5. Hypertension was not incurred in or aggravated by active military service, nor may such be presumed to have been incurred in or aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 6. Diabetes mellitus, Type II, was not incurred in or aggravated by service, nor may such be presumed to have been incurred in or aggravated therein. 38 U.S.C.A. §§ 1101, 1112, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to the adjudication of the veteran's claims, letters dated in April 2004, June 2004 and August 2004, fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The aforementioned letters told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. The Board also notes that the veteran was provided with appropriate notice pertaining to his petition to reopen the claim of entitlement to service connection for bilateral hearing loss, compliant with Kent v. Nicholson, 20 Vet. App. 1 (2006). Since the Board has concluded that the preponderance of the evidence is against these claims for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The veteran was afforded VA medical examinations in November 2004 to obtain opinions as to whether a left ankle disability, bilateral hearing loss and bilateral tinnitus could be directly attributed to service. Further examinations or opinions are not needed on these claims because, at a minimum, there is no persuasive and competent evidence that the claimed conditions may be associated with the veteran's military service. Specifically, the veteran has not been diagnosed with bilateral tinnitus or a left ankle disability and a negative nexus was provided pertaining to his bilateral hearing loss claim. This is discussed in more detail below. The Board concludes examinations were not needed in conjunction with the veteran's claims for hypertension, DM or low back disability because the only evidence indicating the veteran "suffered an event, injury or disease in service" is his own lay statements. Such evidence is insufficient to trigger VA's duty to provide an examination. The Court has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim because there was no evidence, other than his own lay assertion, that " 'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). See also Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) is not in conflict with § 5103A(d) and evidence of record "establishing that the veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligation under § 5103A to provide a veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some casual connection between his disability and his military service"). There is no reasonable possibility that medical opinions would aid in substantiating the veteran's claims since they could not provide evidence of a past event. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. New and Material Evidence - Bilateral Hearing Loss The veteran contends that his bilateral hearing loss was first manifested during service. The veteran brought his original claim for this condition in July 1992. He was denied by a rating decision of the RO in September 1992, finding essentially that there was no evidence of in-service incurrence and no current disability. The veteran appealed this decision and ultimately the Board continued the denial of his claim in August 1998. That decision is final. See 38 U.S.C.A. §§ 7104 (West 2002 & Supp. 2007). Under 38 U.S.C.A. § 5108, VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2007). 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). As the previous denial of service connection was premised on a finding that there was no evidence of complaints or treatment for bilateral hearing loss in service, for evidence to be new and material in this matter, (i.e., relating to an unestablished fact necessary to substantiate the claim, and raising a reasonable possibility of substantiating the claim), it would have to tend to show that the veteran's bilateral hearing loss was incurred or aggravated by service. The RO received the veteran's VA and private treatment records diagnosing this condition, as well as the VA examination report, dated in November 2004. This "new" evidence is not material, however. The newly received evidence does not contain any indication of treatment for bilateral hearing loss in service, nor was a medical nexus provided relating the veteran's current bilateral hearing loss to service. In fact, the November 2004 VA examiner provided a negative nexus opinion. The Board finds that the evidence received since 1998, while relating to unestablished facts necessary to substantiate the claim, does not raise a reasonable possibility of substantiating the claim. Therefore, the evidence is not material. The appeal to reopen the veteran's claim for service connection for bilateral hearing loss is denied. III. Bilateral Tinnitus, Left Ankle Disability & Low Back Disability Review of the veteran's service medical records reveals that in March 1977, the veteran was seen with complaints of low back pain and left ankle pain. Upon examination, the veteran's low back examination was normal and no diagnosis was provided. See service medical record, March 9, 1977. With regard to the left ankle, examination revealed it to be slightly swollen, but otherwise normal. The veteran was diagnosed with a mild left ankle inversion sprain. See service medical record, March 30, 1977. The veteran was again seen in October 1977 with complaints of low back pain. Examination was normal and no diagnosis was provided. See service medical record, October 21, 1977. There is no indication in the veteran's service medical records that he ever complained of or was treated for bilateral tinnitus. The Board concedes that the veteran did complain of left ankle and low back pain during his time in service. See Hickson, supra. In order to be considered for service connection, however, a claimant must first have a disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). As the veteran was not diagnosed with a low back disability in service, he was not afforded a VA examination. The Board notes that 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. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The evidence of record is also completely devoid of a diagnosed low back disability. Given the veteran's military occupational specialty as a cannon crewman, he was afforded a VA audiological examination in November 2004. Upon examination, the veteran denied suffering from bilateral tinnitus. See VA audiological examination report, November 8, 2004. Thus, he does not have a currently diagnosed disability. Finally, the veteran was afforded a VA joints examination in November 2004. The examiner reviewed the evidence of record and did not find a diagnosed disability. X-ray findings for the left ankle were normal. The examiner did not diagnose a left ankle disability. See VA joints examination report, November 8, 2004. In the absence of diagnosed bilateral tinnitus, low back disability and left ankle disability, service connection may not be granted. See also Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). Accordingly, the Board concludes that the preponderance of the evidence is against the claims for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. IV. Hypertension The veteran contends that his currently diagnosed hypertension was caused by his time in service. Hypertension means persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90. See Dorland's Illustrated Medical Dictionary at 889 (30th ed. 2003). For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). Review of the veteran's service medical records indicates the veteran's blood pressure to be 128/80 upon entry into service and the veteran did not complain of such. See Standard Form (SF) 88 and SF 93, entrance examination reports, December 17, 1975. Throughout service, the veteran's blood pressure was normal for VA purposes. Upon separation from service, the veteran's blood pressure was 130/72 and he did not complain of high blood pressure. See SF 88 & SF 93, separation examination reports, December 4, 1978. The veteran was not diagnosed with hypertension until 2000. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent or more within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). The first showing of hypertension in the record is the VA treatment record dated in 2000. There is no evidence to support a finding that the veteran's hypertension was compensable to at least a 10 percent degree within the first post-service year. Therefore, service connection on a presumptive basis is not warranted. With regard to the decades-long evidentiary gap in this case between active service and the earliest hypertension complaints, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury or disease in service, which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing hypertension complaints, symptoms, or findings for approximately 20 years between the period of active duty and the medical reports dated in 2000 is itself evidence which tends to show that hypertension did not have its onset in service or for many years thereafter. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003). Since there is no evidence in the veteran's service medical records that he suffered from hypertension in service and no positive nexus opinion, the veteran's claim must fail. See Hickson, supra. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the veteran's claim of entitlement to service connection for hypertension, on a direct or secondary basis, must be denied. See 38 U.S.C.A §5107 (West 2002). V. Diabetes Mellitus, Type II The law provides that a veteran who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed during such service to certain herbicidal agents (e.g., Agent Orange) unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. If the veteran was exposed to an herbicide agent during service, the following diseases shall be service- connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there was no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied; chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutaneous tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchitis, laryngitis or trachea) and soft tissue sarcomas, other than osteosarcoma, chondrosarcoma Kaposi's sarcoma, or mesothelioma. See 38 C.F.R. § 3.309(e) (207). However, as indicated above, notwithstanding the foregoing, regulations provide that service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to the merits of the claim, the veteran's service medical records contain no evidence of complaints, treatment or diagnosis of DM. Medical evidence of record does confirm a current diagnosis of DM, thereby satisfying the first element of the veteran's service connection claim. Significantly, this disorder was first diagnosed many years following the veteran's separation from service. The veteran's primary contention is that he was exposed to Agent Orange while serving in Korea. Service personnel records confirm that the veteran had Korean service beginning in January 1978. Nevertheless, the objective evidence of record fails to show that the veteran was exposed to Agent Orange while serving in Korea. The Department of Defense only acknowledges the use of herbicides for specific units that served in areas along the DMZ in Korea between April 1968 and July 1969. See e.g., VHA Directive 2000-027 (September 5, 2000). The veteran's service personnel records indicate that the veteran did not enter service until December 1975, approximately 4-1/2 years after the time period when Agent Orange was used in Korea. The record also fails to show that the veteran was otherwise exposed to Agent Orange in Korea. Consequently, the Board concludes that the veteran was not exposed to Agent Orange during his service in Korea, and service connection for diabetes is not warranted on such basis. As noted above, the veteran has been diagnosed with DM, which is a disease presumptively associated with herbicide-exposed veterans pursuant to 38 C.F.R. § 3.309. Exposure to herbicides, however, is presumed for a veteran who had the requisite service in the Republic of Vietnam. On review, the veteran's DD Form 214 does not reflect that he had Vietnam service, nor was he awarded or authorized to wear a Vietnam Service Medal. In the absence of Vietnam service or some evidence of the veteran's presence in Vietnam, presumptive service connection for diabetes mellitus, secondary to Agent Orange exposure in Vietnam, is not warranted. The Board acknowledges that the Agent Orange presumption is not the sole method for showing causation and that the veteran is not precluded from establishing service connection with proof of direct causation. See Combee, supra. However, the veteran has not submitted any medical evidence, which suggests or demonstrates that his claimed disorder was in any way related to service or to the Agent Orange the veteran claims he was exposed to during service. Thus, given that the veteran is not presumed to have been exposed to Agent Orange based on service in Vietnam and he did not serve in Korea during the time period the Department of Defense has indicated that Agent Orange was used, and he has not otherwise shown that he was exposed to Agent Orange in service, he is not entitled to service connection for diabetes based on exposure to Agent Orange. In addition, since the claimed disorder was not manifested during service, or for many years thereafter, and there is no medical evidence relating the disorder to service, service connection is not warranted. The Board acknowledges the veteran's contention that his current DM is related to his period of service. However, his opinion as to medical matters is without probative value because he, as a layperson, is not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Given the evidence against the claim, for the Board to conclude that the veteran's disorder had its origin during service or is related to Agent Orange exposure in these circumstances would be speculation, and the law provides that service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). The veteran was advised of the need to submit medical evidence demonstrating evidence of a nexus between DM and service by way of the August 2004 letter from the RO to him, but he has failed to do so. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a), and the veteran was clearly advised of the need to submit medical evidence of a current disorder and of a relationship between an injury, disease or event in service. Accordingly, the Board concludes that service connection for diabetes mellitus, to include as secondary to Agent Orange exposure, is not established. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. ORDER The appeal to reopen the claim for service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral tinnitus is denied. Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes mellitus, Type II, to include as due to herbicide exposure, is denied. REMAND After a thorough review of the veteran's claims file, the Board has determined that additional development is required prior to the adjudication of the veteran's petition to reopen his claim of entitlement to service connection for schizophrenia and his claim of entitlement to service connection for chronic kidney failure. During the pendency of this appeal, on March 31, 2006, the Court issued a decision in the appeal of Kent v. Nicholson, 20 Vet. App. 1 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to notify claimants of the need to submit new and material evidence, and the basis of the prior denial and what "material" evidence would be in his case. In the present appeal, the veteran was provided with notice in April 2004 of what constitutes "new" and "material" evidence in general, but no notice was provided regarding the basis of the veteran's prior denial and what would specifically constitute "material" evidence for his schizophrenia claim. Accordingly, the notice is not VCAA compliant as defined in Kent. The RO/AMC should provide the veteran with corrective VCAA notice, assuring that all applicable laws, regulations and precedents are satisfied. The Board also notes that the veteran identified private treatment records from a "Dr. Dimoto" for his kidney condition during his Board hearing that have not been associated with the veteran's claims file. See Travel Board hearing transcript, p. 20, September 19, 2007. As such, the RO/AMC must attempt to obtain these missing records. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) for the issue of entitlement to service connection for schizophrenia (previously claimed as a personality disorder), including an explanation as to what constitutes "new" and "material" evidence in his case, including a description of the basis of the prior denial, as outlined by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. The RO/AMC must attempt to obtain any private treatment records from the physician the veteran identified as "Dr. Dimoto" during his Board hearing. If these records are unavailable, a statement to that effect must be associated with the veteran's claims file. 3. After the above is complete, readjudicate the veteran's claim of whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for schizophrenia and, if so, whether service connection is warranted. The claim of entitlement to service connection for chronic kidney failure should also be readjudicated. If the claims remain denied, issue a supplemental statement of the case to the veteran and his attorney, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2007). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs