Citation Nr: 0817574 Decision Date: 05/29/08 Archive Date: 06/09/08 DOCKET NO. 05-21 387A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a chronic disability manifested by sore throat and choking claimed as secondary to gas exposure and paint fumes. 2. Entitlement to service connection for migraine headaches claimed as secondary to gas exposure and paint fumes. 3. Entitlement to service connection for tuberculosis. 4. Entitlement to service connection for larynx cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from December 1990 to May 1991, and a verified period of ACDUTRA from July 1981 to November 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal of a December 2004 decision of the Jackson, Mississippi, regional office (RO) of the Department of Veterans Affairs (VA) that denied service connection for larynx cancer and a March 2005 RO decision that denied service connection for tuberculosis. The veteran perfected an appeal of these matters in July 2005. In October 2005, the veteran was scheduled for a hearing before a Decision Review Officer (DRO) at the RO, but he did not appear. Thereafter, in November 2005, the RO issued a supplemental SOC (SSOC) reflecting the continued denial of the claims for service for larynx cancer, to include as due to paint fume and asbestos exposure and for tuberculosis following a de novo review of the entire evidence of record. This appeal also arises from a January 2006 decision, in which the RO denied service connection for a chronic disability manifested by sore throat and choking, and for headaches, each claimed as secondary to gas exposure. In March 2006, the veteran testified during two hearings before a DRO at the RO. A transcript of each hearing is associated with the claims file. During the first DRO hearing, the veteran indicated that he was in disagreement with the January 2006 decision that denied service connection for a chronic disability manifested by sore throat and choking, and for headaches, each claimed as secondary to gas exposure. The veteran also submitted his written notice of disagreement. Therefore, the DRO decided to hold a second hearing pertaining to the additional claims for service connection that were denied in the January 2006 RO decision. The veteran perfected a timely appeal of the claims for service connection denied in the January 2006 decision. In May 2007, the RO issued a supplemental SOC (SSOC) reflecting the continued denial of all four claims on appeal following a de novo review of the entire evidence of record. In August 2007, the veteran testified during a hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of that hearing is of record. The Board's decisions on the claims for service connection for tuberculosis and for larynx cancer are set forth below. The claims for service connection for a disability manifested by sore throat and choking and for headaches are being remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the veteran when further action, on his part, is required. FINDINGS OF FACT 1. Although April 1990 medical records reflect a positive PPD test, the medical evidence establishes that the veteran is not currently diagnosed with tuberculosis. 2. The veteran was diagnosed with cancer of the larynx in March 2004. 3. There is no independent showing of the veteran having been exposed to asbestos in connection with his duties while on active service. 4. The only competent and probative medical opinion to address etiology of the veteran's larynx cancer weighs against a nexus between any incidents in service, to include paint fume exposure and alleged asbestos exposure or exposure to substances during yearly gas chamber training exercises. CONCLUSIONS OF LAW 1. The criteria for service connection for tuberculosis are not met. 38 U.S.C.A. §§ 105(a), 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. Larynx cancer was not incurred in or aggravated during service and may not be presumed to have been so incurred, including on the basis of paint fume exposure, or of claimed exposure to asbestos or yearly gas chamber exercises during service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice 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). VCAA-compliant 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.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in pre-rating notice letters issued in December 2004, January 2005, and September 2005, the RO provided notice to the appellant regarding the information and evidence needed to substantiate his claims for service connection. These letters also informed the veteran of what information and evidence must be submitted by the veteran, and what information and evidence would be obtained by VA. These letters further requested that the veteran submit any additional information or evidence in his possession that pertains to his claims, and the claims file reflects that the veteran has submitted evidence in support of his claims. However, the veteran was not provided with notice of the information necessary to substantiate his claims for service connection for larynx cancer and tuberculosis on the basis of exposure to asbestos and paint fumes until after the December 2004 and March 2005 decisions, respectively. In addition, the veteran did not received notice of the disability and effective date elements pursuant to Dingess, supra, until January 2007, after each of the rating decisions on appeal, thus the Board finds that a timing error has occurred. Pursuant to the holding in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), any error in section 5103(a) notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. A notice error requires reversal unless VA can show the error did not affect the essential fairness of the adjudication. Id. The Federal Circuit explained that in order to overcome this presumption, VA must persuade the reviewing court that the purpose of the notice was not frustrated, e.g., by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id. In this case, the appropriate notice responsive to the veteran's alleged asbestos and paint fume exposure was provided to the veteran in a June 2005 letter and a January 2007 letter provided to the veteran was compliant with the notice requirements pursuant to Dingess/Hartman. Following the issuance of each notice described above, the veteran and his representative were afforded further opportunities to respond and submit additional information and/or evidence pertinent to the matters on appeal before the RO readjudicated each of the claims in the May 2007 SSOC. Hence, the veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect); see generally, Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (any defect in the timing of the notice constitutes harmless error). Additionally, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters decided herein. As a result of these efforts, available service treatment records, VA medical records, private medical records, and the report of an October 2005 VA medical opinion have been associated with the claims file. Also of record and considered in connection with the appeal is the transcript of the March 2006 RO hearing and the August 2007 Board hearing, as well as various written statements provided by the veteran as well as by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate these 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, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. § 101(24). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). If malignant tumors become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of a malignant tumor during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Tuberculosis After a full review of the record, including the medical evidence and statements made by and on the veteran's behalf, the Board finds that service connection for tuberculosis is not warranted. In this regard, a Mississippi State Department of Health record reflects that the veteran had a PPD (purified protein derivative of tuberculin) test in April 1990, and that it was positive. However, having a positive test result is not the same as having a diagnosis of tuberculosis, and a positive test result does not constitute a disability. The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). There is no evidence of record suggesting the veteran's positive test result causes any impairment of earning capacity. The veteran's health care provider further indicated that the veteran had tuberculosis infection, but no disease. Chest x- rays in May 1990 were negative. An April 1991 service treatment record notes that the veteran previously had a positive PPD test and was treated with INH for seven months, but there was no diagnosis of tuberculosis at that time or in any subsequent service or post-service treatment records. Tuberculosis has not been diagnosed, and the veteran even conceded that he has not been diagnosed with tuberculosis during his August 2007 hearing before the undersigned. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C.A. § 1110. Hence, where, as here, competent evidence establishes that the veteran does not, at a minimum, have the disability for which service connection is sought-here, tuberculosis-there can be no valid claim for service connection for tuberculosis. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Larynx Cancer Initially, the Board points out that the evidence of record clearly establishes that the veteran was diagnosed with larynx cancer in March 2004 and after undergoing treatment, he is currently in remission. Therefore, in contrast to the veteran's claim for service connection for tuberculosis, there is medical that demonstrates the current existence of larynx cancer and the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The veteran contends that his larynx cancer is a result of paint fume exposure or asbestos exposure in service. The veteran asserts that he was exposed to asbestos during training at Camp Shelby when he was living in the barracks. The veteran stated that they were moved once this was determined, but some of the buildings in which they worked also had asbestos which meant that they continued to have exposure. At that time, the veteran stated that his duties entailed providing transportation for people on the bases and he was a mechanic for awhile. The veteran stated that a doctor told him that his cancer was related to the asbestos. However, the contemporaneous evidence does not support the veteran's assertions. In cases involving a claim of entitlement based on asbestos exposure in military service as the cause of current disability, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993); Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). There is no statute specifically dealing with service connection for asbestos-related diseases, nor has the Secretary promulgated any specific regulations. In 1988, however, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (January 31, 1997) (hereinafter "M21-1"). Also, an opinion by VA's Office of General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-00. VA must analyze the veteran's claim for service connection for asbestos-related disease under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. With asbestos-related claims, the Board must also determine whether the claim development procedures applicable to such claims have been followed. Ashford v. Brown, 10 Vet. App. 120, 124-125 (1997) (while holding that the veteran's claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the RO's compliance with the Circular's claim-development procedures). The RO must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post- service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency and exposure information discussed above. M21-1, Part VI, 7.21(d)(1), p. 7-IV-3 and 7-IV-4 (January 31, 1997). In this case, the record shows that the RO complied with these procedures. The RO sent the veteran a letter in June 2005 requesting these details, including the nature of the disability he claims is related to asbestos exposure, the history of his exposure in service, and his history of employment after service. Therefore, VA has satisfied its duty to assist the veteran in developing this claim. The most common disease resulting from exposure to asbestos is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See M21-1, Part VI, 7.21(a)(1). Persons with asbestos exposure have an increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, 7.21(a)(3). Occupations involving asbestos exposure include mining and milling, shipyard and insulation work, demolition of old buildings, construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, etc. High exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. See M21- 1, Part VI, 7.21 In this case, no medical evidence shows that the veteran has asbestosis, and there is no medical opinion that relates the cancer of the larynx to asbestos exposure. The veteran's service records were requested by the RO but noted to not be available. Some of the veteran's Army records are on file. These records verify that the veteran served at Camp Shelby. However, there is nothing in those records to indicate that the duties that the veteran performed while assigned there exposed him to asbestos. A DA Form 2173 reflects that in June 1990, while at Camp Shelby, the veteran was injured from paint fume inhalation, in the line of duty. But, a chest x-ray, when compared with an earlier May 1990 x-ray report, revealed no acute changes and was reported as negative. In a June 1990 service treatment record (STR) an examiner commented that paint fume inhalation causes chemical irritation of airways with dizziness and headache that is temporary with no significant consequence. A May 1990 Simpson General Hospital x-ray report reflects an impression of no acute cardiovascular or pulmonary pathology identified in the chest. The lung field were adequately aerated and were grossly clear. The visualized portions of the diaphragm and bony thorax did not appear unusual. An April 1993 VA inpatient record reflects that the veteran received treatment for alcohol detoxification. At that time, he reported he had been drinking excessively for approximately three years and smoking two packs of cigarettes daily for an undetermined amount of time. On examination, his lungs were clear, heart regular, and laboratory results were essentially normal. A March 2004 VA record reflects that the veteran has an extensive history of alcohol abuses (last drink was one year ago) and a two to three pack a day smoking history who presented to the ear, nose, and throat (ENT) clinic with a six month history of hoarseness. The veteran underwent diagnostic testing and biopsies were positive for squamous cell carcinoma antigen (SCCA) of the left true vocal cord. In October 2005, the RO sought a VA medical opinion regarding the etiology of the veteran's laryngeal cancer. In the request for the opinion, the RO provided a comprehensive discussion of the veteran's medical history and his contentions. In the October 2005 VA medical opinion, the VA examiner noted that the claims file was reviewed. In addition, he commented that the veteran claimed that he was exposed to asbestos and paint fumes in 1990 and that this was the cause of his laryngeal cancer. The examiner noted that the record reflected the 1990 entry that the veteran was indeed seen with airway irritation secondary to paint fume exposure, but there were no further entries to show there was a continuation of this problem. He also commented that the veteran was diagnosed with carcinoma of the larynx in 2004. He furthered that the most significant part of the veteran's record is that he has a 30 plus pack year history of use of tobacco and a history of alcoholism. After reviewing all of the records, the examiner stated that it was his impression that it was virtually impossible for the veteran to have developed carcinoma of the larynx in 2004 from a single paint exposure in 1990 or to asbestos exposure. Neither of these agents are known to cause carcinoma of the larynx except on very prolonged and continued exposure over many years. The examiner furthered that it was his opinion that the veteran's laryngeal cancer was caused primarily by the use of tobacco and alcohol. He discussed that virtually 95 percent plus of the patients presenting with cancer of the larynx, the etiology has proven to be chronic use of cigarettes and tobacco. The examiner opined that the veteran did not have any relationship between his exposure to paint fumes and asbestos and his carcinoma of the larynx. The medical evidence establishes that the veteran's diagnosed larynx is not due to any event or incident of the veteran's period of active service, to include any period of ACDUTRA. There is no favorable medical opinion regarding the etiology of the claimed larynx cancer, which became manifest fourteen years after discharge from service. Although M21-1, Part VI, 7.21(a)(1) recognizes that cancer of the larynx may be associated with asbestos exposure, this does not create presumption of service connection, and all the elements of service connection must still be established by the evidence. The Board notes in this regard that the passage of many years between discharge from active service and the medical documentation of a claim disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board finds that the October 2005 VA examination report constitutes a clear and highly probative opinion that on the nexus question, inasmuch as it was based on examination of the veteran, and consideration of his documented evidence and assertions. The opinion also reflects a thorough discussion of the veteran's cancer of the larynx and the most likely etiology of this disability. Moreover, the rationale underlying the opinion is reasonable and supportive by the objective record and apparent consideration of sound medical principles. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) ("It is the responsibility of the BVA to assess the credibility and weight to be given the evidence") (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Significantly, moreover, neither the veteran nor his representative has presented or alluded to the existence of any contrary medical evidence or opinion that would support the veteran's claims for service connection. In summary, then, there is no competent evidence of larynx cancer during service, no competent evidence of the disease within one year of discharge from service, nor any competent evidence otherwise suggesting a link between the veteran's larynx cancer and service, to include exposure to asbestos or paint fumes. In light of the October 2005 VA examination report which weighs against the claim, the Board must find that the preponderance of the evidence is against the veteran's claim of service connection for larynx cancer. At this juncture, the Board notes that the possible absence of some of the veteran's service records does not affect the outcome of this claim. At best, these records would confirm the veteran's contentions that he was exposed to asbestos in some buildings at Camp Shelby. However, the October 2005 VA examiner assumed that the veteran had some exposure to asbestos, but still opined that the larynx cancer was the result of other factors. Additional records confirming exposure could not change this opinion. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). Conclusion Further, to whatever extent the veteran-and his representative, through arguments made on the veteran's behalf-attempt to support the claim on the basis of assertions, alone, the Board points out that matters of diagnosis and etiology are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As laypersons, neither the veteran nor his representative is shown to have appropriate medical training and expertise to competently render a probative opinion on a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the claims for service connection for tuberculosis and for larynx cancer must be denied. In reaching this conclusion, the Board has considered the benefit-of-the- doubt doctrine; however, as the preponderance of the evidence is against each of these claims, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tuberculosis is denied. Service connection for larynx cancer is denied. (CONTINUED ON NEXT PAGE) REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review of the remaining claims for service connection for a chronic disability manifested by sore throat and choking, and for migraine headaches, each claimed as secondary to gas exposure. Initially, the Board notes that pertinent to both issues remaining on appeal, not all of the veteran's service treatment records are associated with the claims file. In fact, it appears that in correspondence received in March 1992 from the Mississippi National Guard, after the veteran's period of active duty, there was difficulty locating the veteran's service treatment records. Subsequently, only a few select records were obtained and associated with the claims file. In light of the above, the Board finds that the RO should again contact the National Personnel Records Center (NPRC), the service department, and the Mississippi Army National Guard in an attempt to obtain all outstanding service treatment records related to active service and Army National Guard service. The veteran asserts that he developed a chronic disability manifested by sore throats and choking during service, and that such problems have continued to manifest to the present day. During the veteran's active duty service in January 1991, he was treated for complaints of sore throat, body aches, and difficulty swallowing and talking. He was assessed with an upper respiratory infection. In April 1991, the veteran was treated for complaints of chest congestion, head cold, and right eye swelling. In May 1991, the veteran was seen for complaints of sinus drainage with congestion in the chest and was assessed with allergic rhinitis. Post- service medical records reflect that the veteran has been treated for complaints of sore throat prior to treatment for his non service-connected larynx cancer. In this regard, in March 2003, private medical records reflect the veteran was assessed with an upper respiratory infection. In addition, November 2003 private medical records show that the veteran was diagnosed with allergic rhinitis and laryngitis. The veteran testified during the Board hearing that after being exposed to gas during gas chamber exercises in the National Guard and from paint fume exposure he began to have problems with sore throats and choking. Such evidence is relevant to the veteran's claim of experiencing the claimed symptoms during service. In light of the veteran's contentions, there is an indication that the veteran's current complaints of sore throats, periodic treatments for upper respiratory infections, and diagnosis of allergic rhinitis may be associated with his service. The Board notes that the veteran is competent to report having experienced sore throats and choking problems during and subsequent to service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Thus, the Board finds that a VA Ear, Nose, and Throat examination is necessary to determine the nature, extent and etiology of any currently chronic disability manifested by sore throat and choking, in order to meet the requirements of 38 C.F.R. § 3.159(c)(4). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the veteran's claim for service connection for headaches, the veteran's July 2005 claim states that he had migraine headaches prior to entering service, but that they were aggravated by exposure to gas. The RO has not informed the veteran of the information and evidence needed to establish service connection for a pre- existing condition or due to aggravation of a pre-existing disorder beyond its natural progression. Action by the RO is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). A review of the service medical records indicates that the veteran's entrance examination for his period of active duty is among the records not contained in the claims folder. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. In view of the veteran's contentions of a pre-existing headache disability, the missing records and the June 1990 records of paint fume inhalation with subsequent headaches during Reserve service, the Board finds that the record is not sufficient to reach a decision on the claim for service connection for migraine headaches. A medical opinion that addresses the relevant questions of incurrence and aggravation has not been obtained. The duty to assist also requires medical examination when such examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Unfortunately, the Board observes that the precise medical opinion required to reach a determination in this matter depends on factors such as whether or not the veteran's claimed migraine headaches existed prior to service, and whether or not any pre-existing headache disability was noted on the entrance examinations. In view of the missing service medical records and the Board's inability to predetermine their contents, the opinion request is necessarily complex in order to cover every eventuality and to prevent additional remand. The veteran is hereby advised that failure to report for any scheduled VA examination, without good cause, may result in denial of the original claim as such claims will be decided on the basis of evidence of record. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran does not report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding VA medical records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent treatment records from the VA Medical Center (VAMC) in Jackson, Mississippi dated from January 1994 to November 2002, and from April 2007 to the present, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requests for records from Federal facilities. The Board notes that there is a January 1994 letter from P. J. Pasco, DO, associated with the claims file indicating that he had treated the veteran over the past several years. However, no clinical treatment records from Dr. Pasco are associated with the record and should be obtained on remand. The RO should also give the veteran another opportunity to present information and/or evidence pertinent to the claim on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2005) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period). The RO's letter should also invite the veteran to submit all pertinent evidence in her possession, and ensure that its letter to her meets the notice requirements of the decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as regards the five elements of a claim for service connection-particularly, disability ratings and effective dates-as appropriate. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties imposed by the Veterans Claim Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, these matters are REMANDED to the RO, via the AMC, for the following action: 1. Make another attempt to obtain the veteran's complete service treatment records by contacting the NPRC, the service department, and the Mississippi Army National Guard. This includes active military service from December 1990 to May 1991, and service in the Mississippi Army National Guard from April 1981 to April 1995, December 1995 to December 1998, and December 1998 to June 2002, with a verified period of ACDUTRA from July 1981 to November 1981. All records and/or responses received should be associated with the claims folder. Any follow up actions suggested by these sources should be attempted and documented in the claims folder. 2. Obtain from the Jackson VAMC all outstanding records of evaluation and/or treatment for upper respiratory conditions, (i.e. sore throats, infections, etc.) and headaches, to include all ENT reports, from January 1994 to November 2002, and from April 2007 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Furnish to the veteran and his representative VCAA-compliant notice specific to each of the claims remaining on appeal, to specifically include notice that informs the veteran of the information and evidence needed to establish service connection for a pre- existing condition based on aggravation during active service. In addition, the letter should request the veteran to provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. In this regard, the veteran should be specifically requested to provide authorization to obtain the veteran's treatment records from Patrick J. Pasco, DO, with the Medical and Surgical Clinic in Magee, Mississippi (as noted above). Request that the veteran submit all evidence in his possession pertinent to the claims on appeal, and ensure that its notice to him meets the requirements of Dingess/Hartman (cited to above), particularly as regards assignment of disability ratings and effective dates, as appropriate. The letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the veteran and his representative that the records were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all available records and/or responses from each contacted entity are associated with the claims file, or, the time period for the veteran's response has expired, arrange for the veteran to undergo VA examinations, by appropriate physicians, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be provided to each physician designated to examine the veteran, and each examination report should reflect consideration of the veteran's documented medical history and assertions. All indicated tests and studies should be accomplished with all findings made available to the requesting physician prior to the completion of his or her report and all clinical findings should be reported in detail. Each examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. The veteran should be afforded a VA Ear, Nose, and Throat examination to determine the etiology of any disability manifested by sore throat and choking, which is not part and parcel of his non service- connected larynx cancer. The examiner should provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the veteran has a diagnosed disability manifested by sore throat and choking, not part and parcel of his non service- connected larynx cancer, and if so, whether it is at least as likely as not that the disability is related to the veteran's active duty service, any periods of active duty for training and inactive duty training. Also, schedule the veteran for a VA neurological examination to determine the etiology of any diagnosed headache disability. The physician should determine whether the veteran has a current chronic disability manifested by headaches. If the veteran does not have a current chronic disability manifested by headaches, no further opinion is necessary. However, if the veteran is determined to have a current headache disability, then attempt to express the following opinions: 1) Examine any available service medical records for the period of ACDUTRA from July 1981 to November 1981, and active duty from December 1990 to May 1991. For each period of duty, if a disability manifested by chronic migraines was not noted on the entrance examination or the examination are not available, opine (a) whether the veteran's headache disability clearly and unmistakably (undebatably) pre-existed that period of service, and (b) if treatment for headaches was shown during that period, whether or not any pre-existing headache disability clearly and unmistakably (undebatably) did not increase in severity during that period of service. 2) If a disability manifested by chronic migraines was noted on either entrance examination, opine whether it is at least as likely as not (a 50 percent probability or greater) that his headache disability was permanently increased in severity by active duty, to include by any gas chamber training. If there is an increase in severity, opine whether this constitutes an increase in disability beyond the natural progression of the disease. 3) Did the veteran have a chronic headache disability prior to the June 1990 paint fume inhalation on Reserve duty? If so, is at least as likely as not (a 50 percent probability or greater) that this headache disability was permanently increased in severity by this event? If the veteran did not have a chronic headache disability prior to the June 1990 paint fume inhalation, is it as likely as not that this event resulted in the veteran's chronic headaches? 4) If the examiner determines that a headache condition was not shown to preexist service he or she should provide an opinion as to whether it is at least as likely as not that any current chronic headache disability was incurred during the veteran's active service, became manifest to a compensable degree within a one year period of his discharge from service, or is otherwise related to his active service, to include by any gas chamber training. 6. If the veteran fails to report to any scheduled examination, obtain and associate with the claims file copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the veteran and his representative an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 Supp. 2007). ______________________________________________ JOHN L. PRICHARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs