Citation Nr: 0814333 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 06-01 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, to include as secondary to exposure to ionizing radiation. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for multiple joint aches (other than ankylosing spondylitis of the thoracic spine), to include as secondary to exposure to ionizing radiation. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for aneurysm, right middle cerebral artery, to include as secondary to exposure to ionizing radiation. 4. Entitlement to service connection for an eye disorder, to include as secondary to exposure to ionizing radiation. 5. Entitlement to service connection for a tooth disorder, to include as secondary to exposure to ionizing radiation. 6. Entitlement to service connection for cholecystectomy (claimed as a gall bladder disorder), to include as secondary to exposure to ionizing radiation. 7. Entitlement to service connection for a prostate disorder, to include as secondary to exposure to ionizing radiation. 8. Entitlement to service connection for a pancreas disorder, to include as secondary to exposure to ionizing radiation. 9. Entitlement to service connection for post-traumatic stress disorder (PTSD), to include as secondary to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and witness ATTORNEY FOR THE BOARD Tanya A. Smith, Counsel INTRODUCTION The veteran had active service from June 1956 to June 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In March 2008, the veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. While the December 2003 rating decision shows that the RO initially adjudicated the veteran's eye claim as an original claim, thereafter, the November 2005 statement of the case shows that the RO characterized the issue as a new and material evidence claim. The Board observes that the veteran's claim for service connection of an eye disorder has not been the subject of a prior final denial. Therefore, the Board will consider the claim on the merits. The veteran was previously denied service connection for multiple joint aches in a September 1981 RO rating decision. At that time, the RO referenced underlying diagnosed disabilities associated with the cervical and lumbar spine but not the thoracic spine. In an October 2007 rating decision, the RO denied service connection for ankylosing spondylitis associated with the thoracic spine on the merits. As such, the Board re-characterized the issue as noted on the title page to reflect that the veteran's ankylosing spondylitis claim is based on a distinctly diagnosed disease that is separate and distinct from the multiple joint aches claim. Boggs v. Peake, No. 07-7137 (Fed. Cir. Mar. 26, 2008). In March 2008, the veteran submitted additional evidence (VA treatment records dated from August 1992 to August 2004, a December 1995 article on radiation damage to teeth, and an article on atomic testing), which was accompanied by a waiver of his right to have this additional evidence considered by the RO in the first instance. In addition to the evidence received in March 2008, other evidence has been associated with the claims file since the last issuance of a statement of the case in November 2005. For reasons the Board sets forth in detail in the discussion below, there is no basis for remanding the hypertension, multiple joint aches, aneurysm, eye, cholecystectomy, prostate, and pancreas claims for issuance of a supplemental statement of the case based on this evidence. The issues of entitlement to service connection for PTSD and a tooth disorder, to include as secondary to exposure to ionizing radiation, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The September 1981 RO decision that denied service connection for hypertension and multiple joint aches is final. 2. The evidence received since the September 1981 rating decision is cumulative and redundant and does not relate to unestablished facts necessary to substantiate the claims of entitlement to service connection for hypertension and multiple joint aches. 3. The March 1988 RO decision that denied service connection for aneurysm, right middle cerebral artery is final. 4. The evidence received since the March 1988 RO rating decision is cumulative and redundant and does not relate to unestablished facts necessary to substantiate the claim of entitlement to service connection for aneurysm, right middle cerebral artery. 5. The veteran participated in a radiation-risk activity. 6. A disability of the gall bladder was not present in service or within one year of the veteran's discharge from service and is not otherwise etiologically related to service, to include service exposure to ionizing radiation. 7. Disabilities of the eye, prostate, and pancreas were not present in service and are not otherwise etiologically related to service, to include service exposure to ionizing radiation. CONCLUSIONS OF LAW 1. Evidence received since the final September 1981 RO decision, which denied the claim of entitlement to service connection for hypertension, is not new and material, and thus the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). 2. Evidence received since the final September 1981 RO decision, which denied the claim of entitlement to service connection for multiple joint aches, is not new and material, and thus the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). 3. Evidence received since the final March 1988 RO decision, which denied the claim of entitlement to service connection for aneurysm, right middle cerebral artery, is not new and material, and thus the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). 4. An eye disorder was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service as secondary to ionizing radiation exposure. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(d) (2007). 5. Cholecystectomy (claimed as a gall bladder disorder) was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service to include as secondary to ionizing radiation exposure. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), (d) (2007). 6. A prostate disorder was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service as secondary to ionizing radiation exposure. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(d) (2007). 7. A pancreas disorder was not incurred in or aggravated by active service, and may not be presumed to have been incurred in service as secondary to ionizing radiation exposure. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(d) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in December 2002, February 2003, May 2003, July 2003, January 2004, and June 2006 letters, the RO provided notice to the veteran regarding what information and evidence are needed to substantiate the claims, including the elements necessary to establish service connection for a claimed disability, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence that pertains to the claims. In a March 2006 letter, the veteran was provided notice of the information and evidence needed to establish a disability rating and an effective date for the claimed disabilities. The Board notes that in claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice letters comply with the holding of the United States Court of Appeals for Veterans Claims (Court) in Kent. In particular, the January 2004 and June 2006 letters specifically informed the veteran of the type of evidence that was lacking in the prior denial and of the type of evidence that was necessary to reopen the claims. The veteran was advised that the previous denial of the claims was because the conditions claimed are not recognized by the law as presumptive disorders secondary to exposure of ionizing radiation. There was also no evidence presented of an association of the claimed disabilities with radiation exposure. Lastly, the veteran was advised that his claims were previously denied because there was no evidence that the claimed disabilities occurred in or were otherwise caused by service. With respect to the eye claim, in the February 2003 notice letter, the veteran was initially advised that to establish service connection he must show that the claimed disability was incurred in or aggravated by service. Thereafter, in the June 2006 notice, the veteran was erroneously advised that he needed to "reopen" his eye claim. The Board finds that any presumed prejudice by the error is rebutted by the fact that the evidence [evidence that the condition either occurred in or was caused by service] that the RO indicated was necessary to reopen the claim was the same as the evidence needed to establish service connection. Had the veteran submitted the requested evidence, service connection would have been established, or at the very least, VA's duty to assist him further would have been triggered. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's post-service medical records and information from the Defense Threat Reduction Agency (DTRA) regarding the veteran's participation in radiation-risk activity. As for the veteran's service medical records, the National Personnel Records Center (NPRC) reported that these records were not available due to possible destruction in a fire at the NPRC in 1973. The veteran was advised of the unavailability of his service medical records in the May 2003 notice letter. In May 2003, the veteran prepared NA Form 13055 (Request for Information Needed to Reconstruct Medical Data), in which he indicated that he underwent a "radiation experiment" from April 1957 to December 1957 (according to a clarification note affixed to the form). He did not report that he received treatment for any of the claimed disabilities during service. The claims file further reflects that the veteran prepared VA Form 21-4142 (Authorization and Consent to Release Information to VA) for Yoakum Family Practice, but he only noted that this facility was his primary care provider. He did not indicate what treatment he received and when he received the treatment and no such information could be discerned from any of the veteran's several statements of record. While VA has a statutory duty to assist the veteran in developing evidence pertinent to a claim, the veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The veteran did not fully complete the form. Consequently, VA is under no obligation to contact the facility to obtain records that might substantiate any of the claims. At the Board hearing, the veteran testified that he had been in receipt of benefits from the Social Security Administration (SSA) on account of several disabilities, including his back and the aneurysm. Private medical records show that the veteran's aneurysm was discovered after service in 1972. While the veteran now maintains that his back was symptomatic during service, he also indicated that he did not first seek treatment for his back until after service. In addition, private medical records, detailed below, show the onset of a chronic low back disorder in the 1970s. Numerous statements from the veteran have indicated that he did not receive treatment for all of his claimed disabilities until the 1970s. Thus, there is no reasonable possibility that any records pertaining to the award of disability benefits for the back and aneurysm would contain any evidence that would substantiate the veteran's claims. For these reasons, the Board does not find it necessary to obtain records from the SSA. As discussed above, the veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's service connection claims and that no new and material evidence has been received to reopen the hypertension, multiple joint aches, and aneurysm claims, any questions as to an appropriate disability rating or effective date to be assigned the disabilities are rendered moot. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the veteran. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran's service medical records are not available, despite efforts by the RO to obtain them. The Board is aware that in such situations it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2007). Likewise, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C.A. §§ 7103(a), 7104 (West 2002); 38 C.F.R. § 20.1100(a) (2007). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent). New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a) (2007). Furthermore, the Court of Appeals for the Federal Circuit has indicated that evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). 1. Hypertension In a September 1981 rating decision, the RO specifically denied service connection for several disorders. The RO also referenced the veteran's treatment records and various disorders referenced therein, including hypertension. The RO noted that the evidence did not show that any of these disabilities warranted service connection by incurrence, aggravation, or presumption, or by a claimed relationship to radiation exposure. The notice of decision letter dated in October 1981 indicated that service connection was denied for several disorders and "any other claimed disability based upon claimed radiation exposure." The RO enclosed VA Form I-4107, which explained the veteran's procedural and appeal rights. The veteran, however, did not appeal the decision and it became final. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.118, 19.153. The pertinent evidence of record at the time of the September 1981 rating decision included VA treatment records dated from April 1978 to November 1980. [Records from the Audie L. Murphy VA Medical Center from 1977 to the present were requested.] Records dated in April 1979 noted that the veteran wanted a check-up in connection with his history of exposure to radiation. On a systems review, the veteran reported no complaints referable to hypertension. Thereafter, a March 1980 record noted that the veteran was seen for a blood pressure check. He had no symptoms but blood pressure readings were 140/105 and 130/105. The examiner noted an assessment of hypertension. A June 1981 record noted that the veteran reported that he was advised one year ago that he had increased blood pressure. The assessment was poorly controlled hypertension. In a December 1982 statement from the veteran's wife, she described the veteran's various problems. The veteran's claim to reopen was received in December 2002. Pertinent evidence received subsequent to the September 1981 rating decision includes VA treatment records dated from December 1997 to December 2002, which showed that the veteran continued to be followed for hypertension. [Evidence associated with the claims file since the November 2005 statement of the case only noted a diagnosis of hypertension in September 1986 and March 1987, which is a period after it was first documented in 1980 as discussed above. It is for this reason that the Board found no basis for remanding the claim for issuance of a supplemental statement of the case based on this evidence.] As for the additional evidence added to the record since the September 1981 RO decision, the Board finds that it is cumulative and redundant of evidence previously considered by the RO, which showed that it was the veteran's contention that he incurred several disorders, including hypertension, as the result of exposure to radiation during service, and evidence that showed that he was currently diagnosed with hypertension. There continues to be no medical evidence of record that shows that the veteran's hypertension was present in service or within one year of his discharge from service, or was otherwise etiologically related to service, to include service exposure to radiation. Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the claim. Moreover, the evidence does not raise a reasonable possibility of substantiating the claim. Therefore, the Board must find that new and material evidence has not been received to reopen the claim for service connection for hypertension. 2. Multiple Joint Aches In a September 1981 rating decision, the RO denied service connection for multiple joint aches. The RO referenced the veteran's treatment records and various disorders referenced therein, including complaints of lumbar and cervical spine pain. The RO noted that the evidence did not show that any of these disabilities warranted service connection by incurrence, aggravation, or presumption, or by a claimed relationship to radiation exposure. In the notice of decision letter dated in October 1981, the RO advised the veteran of the denial of service connection and enclosed VA Form I-4107, but the veteran did not appeal the decision and it became final. 38 U.S.C. § 7105(c) (formerly § 4005(c)); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (formerly §§ 3.104, 19.118, 19.153). The pertinent evidence of record at the time of the September 1981 RO rating decision included records from Dr. D.M. dated from October 1972 to September 1973. During an October 1972 evaluation for headaches and an aneurysm, a chest x-ray revealed severe mid-thoracic disc degeneration that the radiologist noted was probably associated with old Scheuermann's disease. A December 1975 medical certificate from Dr. J.O. noted that the veteran sustained a neck injury at work in August 1974. The veteran reported that he had been experiencing near constant cervicodorsal pains and severe headaches since the injury. A December 1975 electromyograph (EMG) revealed bilateral upper cervical neuropathies. Dr. J.O. provided a diagnosis of ligamentous damage and bilateral cervical articular-facet instability with localized sites of chronic inflammation of cervicodorsal muscles and ligaments. In the veteran's claim for pension benefits filed in August 1978, he claimed that he stopped working in August 1974 on account of a "back injury." In a VA Form 9 filed in May 1980, the veteran maintained that he was totally disabled not only from the aneurysm, but also from "lumbar and cervical disc pathology." Another records request was made to the Audie Murphy VA Medical Center, but this time for the period 1971 to the present based on an August 1981 letter from the veteran's representative. An April 1978 VA treatment record showed that the veteran reported a history of cervical spine laminectomy in October 1977. A May 1978 radiograph report noted that the veteran had degenerative changes at the C5-C6 and C6-C7 levels. Records dated in April 1979 showed that on a systems review, the veteran reported that he had back pain that had increased in the past year ever since an injury in 1977. He reported that in 1974, he had anterior C5 and C6 discectomy and fusion with associated weakness in his left arm and leg. Post- operatively, he reported that "all bones in [his] body ache." An April 1979 record noted that there was no evidence of toxic effects of radiation exposure. An April 1979 radiograph report noted that the veteran had degenerative changes in the thoracic spine with anterior wedging of the upper thoracic vertebra. An October 1979 record showed that the veteran complained of aching all over in all of his joints for the past three to four weeks. It was noted that the veteran had a long history of back complaints and that surgery had been recommended for the lumbar and cervical spine in the past based on a myelogram in June 1979. Previously, he was seen by neurology in May 1978 and reportedly had cervical spine surgery in July 1977. He was then hospitalized again for spinal meningitis felt to be secondary to the myelogram. A November 1979 record noted an impression of musculoskeletal neck and back pain. A December 1979 record showed that the veteran reported that he hurt his back two years ago. The noted assessment was pain and spasms in the thoracic-lumbar spine area with decreased range of motion. A January 1980 record noted that the veteran received workers compensation from 1974 to 1975. The examiner noted that the veteran had "vague" complaints of neck and low back pain but the exam was not remarkable. A January 1980 radiograph report noted that the veteran had fusion anteriorly of C5, C6, and C7 with obliteration of the disc spaces, and minimal narrowing at the C4-C5 level. The radiologist noted that these changes were probably post- surgical. The veteran also had scoliosis. Films of the lumbar spine revealed minimal scoliosis of the lumbar spine. An August 1980 record noted that the veteran reported that his back and neck problems had their onset four years prior. A September 1980 record noted that x-rays revealed an essentially normal lumbosacral spine. The assessment was mechanical low back pain. Complaints of low back pain and neck pain continued thereafter. At a July 1980 RO hearing, in response to a question of the onset of the veteran's claimed back condition and multiple joint problems and when he first sought treatment, he maintained that he first sought treatment for both ten to fifteen years ago but he had had problems with his back "ever since then." He had been receiving treatment from the Audie Murphy VA hospital since 1977. He suggested that his back was injured from exposure to an atomic blast because his back was facing the blast and a cave in of the trenches occurred. VA treatment records dated from November 1980 to July 1981 showed that the veteran continued to be followed for chronic cervical neck pain and chronic low back pain syndrome. A February 1981 radiograph report noted that the veteran's bones were minimally osteoporotic, and otherwise normal lumbar spine. A July 1981 record noted that the veteran reported a history of cervical and lumbar burning spine pain for the past nine years. In a December 1982 statement from the veteran's wife, she described the veteran's various problems. The veteran's claim to reopen was received in December 2002. Pertinent evidence received subsequent to the September 1981 RO rating decision includes VA treatment records dated from December 1997 to December 2002, which showed that the veteran continued to be followed for cervical and lumbar spine pain. A December 1997 radiographic report noted that the veteran had thoracic kyphosis with wedging of the mid-thoracic vertebra. A June 1999 CT (computed tomography) scan of the lumbar spine revealed multilevel facet hypertrophy with mild canal stenosis at L2-L3, L3-L4, and L4-L5, disc bulges identified at L2-L3, L3-L4, and L4-L5, and multilevel degenerative changes with osteophytes and facet hypertrophy. A February 2001 record noted an impression of degenerative disease of the cervical spine, most significant at the C4-5 level. A February 2001 record noted that the veteran had a history of chronic lower back pain for the past 20 years. At the March 2008 Board hearing, with respect to the problems he had been having with "arthritis or pain in [his] joints," he maintained that this had occurred for "[y]ears." He added that he had been on disability from the SSA since 1975. He was awarded benefits, in part, because of his back. [Relevant evidence associated with the claims file since the November 2005 statement of the case only continued to show that the veteran was followed for neck and back disabilities, and that it was a contention of the veteran that his back became symptomatic after trenches in which he was hiding were leveled into the ground. It is for this reason that the Board found no basis for remanding the claim for issuance of a supplemental statement of the case based on this evidence.] As for the additional evidence added to the record since the September 1981 RO decision, the Board finds that it is cumulative and redundant of evidence previously considered by the RO, which showed that the veteran had disabilities of the neck and back that he maintained were incurred as the result of exposure to radiation and/or an atomic blast. There continues to be no medical evidence of record that shows that the veteran's neck and back disabilities were present in service or within one year of his discharge from service, or were otherwise etiologically related to service, to include service exposure to radiation. Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the claim. Moreover, the evidence does not raise a reasonable possibility of substantiating the claim. Therefore, the Board must find that new and material evidence has not been received to reopen the claim for service connection for multiple joint aches (other than ankylosing spondylitis of the thoracic spine). 3. Aneurysm, Right Middle Cerebral Artery In a June 1981 decision, the Board denied service connection for aneurysm of the right middle cerebral artery on the basis that the aneurysm was not present until many years after service, that ongoing scientific research had not demonstrated the presence of an etiological relationship between the development of an aneurysm and the level of radiation exposure recorded for the veteran or conceivably received by participants in the atomic bomb tests, and that it was not otherwise shown that the claimed disability was the result of service. The claim was last finally denied in March 1988. The RO noted that additional evidence showed an increase in the veteran's radiation exposure level based on a total radiation exposure dose during Operation PLUMBBOB. The RO, however, maintained that an aneurysm was not an enumerated radiogenic disease. In the notice of decision letter dated in April 1988, the RO further noted that the disease was not incurred in or presumed due to service. The RO enclosed VA Form I- 4107, but the veteran did not appeal the decision and it became final. 38 U.S.C. § 7105(c) (formerly § 4005(c)); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (formerly §§ 3.104, 19.129, 19.192). The pertinent evidence of record at the time of the March 1988 rating decision included records from Dr. D.M. dated from October 1972 to September 1973. In October 1972, the veteran reported a history of headaches that were initially of a mild nature for "a year or so," but in the last few weeks had become much more severe. A bilateral carotid arteriogram revealed a large aneurysm of the middle cerebral artery for which the veteran underwent surgery. In a September 1973 letter, Dr. D.M. noted that the veteran had a history of a blow to the head in July 1972. Dr. D.M. maintained that a blow to the head or trauma involving the head in July 1972 would have been quite unlikely to cause this type of aneurysm. Dr. D.M. explained that aneurysms were generally thought to be of congenital or developmental origin and that trauma as etiology would be quite unlikely. Radiation dose estimates of the veteran's exposure to radiation in 1957 were of record. At a July 1980 RO hearing, the veteran presented testimony on residuals of his aneurysm. In a December 1982 statement from the veteran's wife, she described the veteran's various problems. The veteran's claim to reopen appears to have been received in May 2003. Evidence received subsequent to the March 1988 rating decision includes statements from the veteran reiterating that his brain aneurysm was due to radiation exposure. The RO received morning reports from the NPRC in August 2003. The veteran submitted information pertaining to Operation PLUMBBOB. VA treatment records dated from December 1997 to December 2002 noted a history of aneurysm. [Evidence associated with the claims file since the November 2005 statement of the case included an article on atomic testing, including Operation PLUMBBOB. This cumulative evidence presents no basis for remanding the claim for issuance of a supplemental statement of the case.] The additional evidence added to the record since the March 1988 RO decision is cumulative and redundant of evidence previously considered by the RO, which showed which that the veteran had an aneurysm that he maintained was incurred as the result of exposure to radiation. There continues to be no medical evidence of record that shows that the veteran's aneurysm was present in service or within one year of his discharge from service, or was otherwise etiologically related to service, to include service exposure to radiation. Thus, the evidence, by itself or when considered in conjunction with the evidence previously of record, does not relate to unestablished facts necessary to substantiate the claim. Moreover, the evidence does not raise a reasonable possibility of substantiating the claim. Therefore, the Board must find that new and material evidence has not been received to reopen the claim for service connection for aneurysm, right middle cerebral artery. B. Service Connection-Eye Disorder, Cholecystectomy, Prostate Disorder, and Pancreas Disorder Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2007). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2007). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and calculi of the gallbladder becomes manifest to a degree of 10 percent within one 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). A "radiation-exposed veteran" is defined as a veteran who while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. "Radiation-risk activity" is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; or internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946. 38 C.F.R. § 3.309(d) (2007). 38 C.F.R. § 3.311 provides instruction on the development of claims based on exposure to ionizing radiation. Pursuant to 38 C.F.R. § 3.311, "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes prostate cancer. 38 C.F.R. § 3.311(b)(2)(i)-(xxiv) (2007). Notwithstanding the above, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), rev'd in part, Combee v. Principi, 4 Vet. App. 78 (1993). In other words, the fact that the veteran may not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis. As for the claimed eye disability, VA records show that an April 1978 examination revealed that the veteran had a visual acuity of 20/25 in the left and right eyes without glasses. Records dated in April 1979 noted that the veteran wanted a check-up in connection with his history of exposure to radiation. On a systems review, the veteran had no complaints of visual change or diplopia. The physical examination revealed that the veteran had "10/10" vision in both eyes without correction. A June 1981 record noted that an examination in connection with the veteran's hypertension revealed that the discs of his fundi were slightly "temp" blurring, not "choked." The vessel was sharp, and there was a slight amount of narrowing. No eye disorder was diagnosed. A February 2001 record noted that the veteran had a history of iritis. An August 2002 record noted that the veteran complained of blurred visual acuity for objects that were near. An examination revealed mild myopia with presbyopia. As for the claimed gall bladder disability, VA treatment records include a March 1979 medical history report the veteran prepared as a "Nuclear Weapons Test Participant." He reported a negative response to the question of whether he had now or ever had gall bladder disease. A May 1981 record noted that the veteran's complaints included abdominal pain. Several disorders were to be ruled out, including cholecystitis. A July 1981 report on an oral cholecystogram noted that there was no significant abnormality of the gallbladder. The veteran had continued to complain of right upper quadrant pain with nausea. A February 2001 record noted a history of cholecystectomy. As for the claimed prostate disability, VA treatment records include a May 1978 record that showed the veteran complained of experiencing incontinence two or three times in the past six months. Records dated in April 1979 showed that on a systems review, the veteran complained of an increase in frequency of urination and nocturia once a night for the past six months. A VA problem list noted a diagnosis of hyperplasia of the prostate as of April 1998. A February 2001 record noted that the veteran had a history of a prostatectomy. An April 2002 record indicated that an examination in October 2001 revealed an enlarged prostate. The examiner noted an assessment of benign prostatic hypertrophy. Lastly, initially, the only evidence of a current disability of the pancreas were statements from the veteran. At the March 2008 Board hearing, the veteran presented testimony on all of the claimed disabilities. Records from Cuero Community Hospital, Detar Hospital, and VA, associated with the claims file since the November 2005 statement of the case, only confirmed that the veteran had a bilateral decrease in visual acuity, that he underwent a cholecystectomy in March 1987, that he had resection of the prostate gland for benign prostatic hyperplasia in April 1994, and that he had recurrent bouts of pancreatitis in 1992 for which he underwent removal of the pancreatic duct. It is for this reason that the Board found no basis for remanding the claims for issuance of a supplemental statement of the case based on this evidence. The Board notes that the veteran had onsite participation in a test involving the atmospheric detonation of a nuclear device during Operation PLUMBBOB. Therefore, he is considered to be a "radiation-exposed veteran" as that term is defined by VA regulations. The above claimed disorders, however, are not among the enumerated diseases subject to presumptive service connection under 38 C.F.R. § 3.309(d)(2), and are not considered radiogenic diseases as set forth in 38 C.F.R. § 3.311(b)(2)(i)-(xxiv) (2007). Contrary to the veteran's contention, he does not have, nor did he ever have cancer of the prostate. There is no competent medical evidence of record that otherwise shows or indicates that the claimed disabilities are the result of exposure to radiation. The medical evidence of record shows that the claimed disabilities manifested many years after the veteran's discharge from service in June 1958. The evidence of a nexus between the veteran's claimed disabilities and his exposure to radiation in service is limited to the veteran's own statements. This is not competent evidence of the claimed nexus since laypersons, such as the veteran, are not qualified to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For these reasons, the Board finds that service connection for an eye disorder, a cholecystectomy, a prostate disorder, and a pancreas disorder is not warranted on a presumptive or direct basis. ORDER New and material evidence not having been received to reopen the claim of entitlement to service connection for hypertension, to include as secondary to exposure to ionizing radiation, the appeal is denied. New and material evidence not having been received to reopen the claim of entitlement to service connection for multiple joint aches (other than ankylosing spondylitis of the thoracic spine), to include as secondary to exposure to ionizing radiation, the appeal is denied. New and material evidence not having been received to reopen the claim of entitlement to service connection for aneurysm, right middle cerebral artery, to include as secondary to exposure to ionizing radiation, the appeal is denied. Service connection for an eye disorder, to include as secondary to exposure to ionizing radiation, is denied. Service connection for cholecystectomy (claimed as a gall bladder disorder), to include as secondary to exposure to ionizing radiation, is denied. Service connection for a prostate disorder, to include as secondary to exposure to ionizing radiation, is denied. Service connection for a pancreas disorder, to include as secondary to exposure to ionizing radiation, is denied. REMAND The veteran contends that he has PTSD as the result of exposure to atomic bomb detonations. As discussed above, the veteran was exposed to radiation during service. A December 2002 VA intake evaluation for PTSD shows a diagnosis of PTSD on Axis I. The report suggests that the PTSD diagnosis is based on the stressor of the veteran having being exposed to radiation in service but does not specifically link the event to the diagnosis. At the Board hearing, the veteran testified that his teeth were brittle. Teeth that appear to be brittle may be a symptom capable of lay observation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The veteran submitted a December 1995 article that noted that two dentists had confirmed that radiation damaged the teeth of "atomic veterans." As the record contains evidence of current disabilities and evidence that indicates that the disabilities may be associated with an established event in service, the Board finds that it is necessary to afford the veteran VA examinations and obtain medical opinions on whether the claimed disabilities are etiologically related to his military service. See 38 U.S.C.A. § 5103A(d)(2) (West 2002), 38 C.F.R. § 3.159(c)(4)(i) (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the Board notes that at the hearing, the veteran reported that he was currently being treated for his PTSD at the Frank Tejeda VA outpatient clinic (South Texas Veterans Health Care System). The veteran also received treatment from the Victoria outpatient clinic according to a February 2003 note to file. Ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (providing that VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain VA treatment records from the Frank Tejeda VA outpatient clinic and Victoria outpatient clinic (South Texas Veterans Health Care System) dating since December 2002, pertaining to any mental health treatment the veteran has received. 2. The RO/AMC should schedule the veteran for a VA psychiatric examination to determine if the veteran suffers from PTSD related to service. The veteran's claims file should be made available to and reviewed by the examiner, and the examination report should reflect that this was done. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. Following review of the claims file and examination of the veteran, the examiner should provide an opinion as to whether the veteran suffers from PTSD as a result of documented exposure to radiation during service. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 3. The RO/AMC should schedule the veteran for a VA dental examination by a dentist to determine the nature of any current dental disorder and to provide an opinion as to its possible relationship to service. The claims file should be provided to and reviewed by the examiner, and the examination report should reflect that this was done. The examiner's review should include the December 13, 1995 article titled, Two Reputable Dentists Confirm Radiation Damages Teeth of Atomic Veterans. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current dental disorder is a result of documented exposure to radiation during service. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 4. Thereafter, the RO/AMC should readjudicate the claims. If the benefits sought on appeal remain denied, the veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 Supp. 2007). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs