Citation Nr: 0841116 Decision Date: 11/28/08 Archive Date: 12/03/08 DOCKET NO. 03-06 324 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a respiratory disorder claimed as emphysema, chronic obstructive pulmonary disease, and asthma, to include as a result of asbestos exposure. 2. Entitlement to service connection for prostate cancer, to include as a result of asbestos exposure. REPRESENTATION WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran had active service from October 1961 to August 1962, with numerous periods of active duty for training and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2001 and May 2002 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In June 2005, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. In April 2003 and April 2008, the veteran testified at personal hearings before Decision Review Officers (DROs). Transcripts of all hearings are of record. In March 2003, the veteran perfected an appeal of the RO's denial of service connection for tinnitus and bilateral hearing loss. In a March 2004 rating decision, the RO granted service connection for tinnitus and bilateral hearing loss. Therefore, these claims have been granted in full and no issue regarding tinnitus or hearing loss is before the Board. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). In an August 2005 decision, the Board denied service connection for prostate cancer and a respiratory disorder. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2006 Order, the Court granted a joint motion of the veteran and VA's General Counsel. That joint motion specified that the Board should ensure VCAA compliance and explain how letters sent to the veteran satisfied VCAA compliance. During the June 2005 Board hearing, the undersigned asked if VA had all of the veteran's medical records. Board hearing transcript at 12. The veteran's representative at that time, The American Legion, stated "I have looked at the C file myself, and I don't see-I mean, they say that they can't find any where he was treated for prostate cancer at Biloxi at all, and he says he has been. Id. So, I don't know if we have them all or not." Id. The veteran reported that he was treated the past week. Id. at 13. The undersigned asked the veteran if he could obtain the records and send them to the Board so as to avoid the delay that a remand would necessarily entail. Id. In the joint remand, the parties noted that the no deadline had been set for the veteran to submit the records; i.e., closure of the record. Hence, the joint remand required that the Board address closure of the record. In May 2007, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC. In that Remand, the Board instructed the RO/AMC to invite the veteran to submit additional evidence or information pertinent to his claims, request a written statement from the veteran's representative as to whether VA had obtained all pertinent medical records from the Biloxi VA health care facility, and schedule the veteran for a hearing before a DRO. Those actions completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Prior to November 2005, the veteran was represented by The American Legion. In. November 2005, the veteran appointed Sean Kendall, an attorney, as his representative, thus revoking representation by the American Legion. 38 C.F.R. § 20.301. Of record is a letter from Mr. Kendall, dated in June 2008, informing VA that he no longer represented the veteran. In the April 2008 DRO hearing, the veteran indicated that he had revoked Mr. Kendall's representation and was representing himself. DRO 2008 hearing transcript at 1. The veteran has not appointed a representative since Mr. Kendall's representation was terminated. The veteran is therefore unrepresented. FINDINGS OF FACT 1. The veteran's respiratory disorder did not have onset during active service and is not otherwise related to his active service. 2. The veteran's prostate cancer did not have onset during active service, did not manifest within one year of separation from active service, and is not otherwise related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2008). 2. The criteria for service connection for prostate cancer have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he has suffered from a respiratory disorder and prostate cancer as the result of service. Specifically, he asserts that these conditions are the result of exposure during active service to asbestos and other environmental irritants/ hazards. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In general, service connection 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was exhibited in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases, including malignant tumors, are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1MR is Part IV, Subpart ii. It lists some of the major occupations involving exposure to asbestos, including mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. Id. With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). VA's Manual M21-1MR, Part IV, subpart ii, Chapter 1, Section H contains guidelines for the development of asbestos related cases. In this case, the record shows that the RO complied with these procedures. The RO sent the veteran a letter in March 2002 requesting the details described above, and the veteran provided some information in March 2002. It should be noted that the pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service by reason of having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed.Cir. 2002); VAOPGPREC 4-2000 (April 13, 2000), published at 65 Fed Reg. 33422 (2000). The veteran contends that he was exposed to asbestos, gunpowder, and other environmental hazards during service aboard the U.S.S. Woodson in 1961 and 1962. During the June 2005 Board hearing, the veteran testified that he worked as a boatswain's mate, and that his duties included chipping paint, painting, working on the deck, and firing guns. Board hearing transcript at 3. There is no way of determining to what extent the veteran was exposed to asbestos during his service nearly 50 years ago. It is known that the general specifications for ships during this period required heated surfaces to be covered with an insulating material and it is highly probable that asbestos products were used to achieve this end. Items that required insulation included piping, flanges, valves, fittings, machinery, boilers, evaporators, and heaters. The veteran has testified that his occupation was boatswain's mate. The probability of exposure to asbestos appears minimal, but a positive statement that the veteran was or was not exposed cannot be made. Regardless, for the purposes of this decision, the Board assumes, without deciding, that the veteran was exposed to some asbestos during service. Service medical records are absent for evidence of symptoms of or treatment for a respiratory disorder, a urinary disorder, or cancer. A separation report of medical examination, dated n July 1962, shows normal clinical evaluations for the veteran's lungs, chest, and genito- urinary system. This is evidence against his claims because it tends to show that the veteran did not have prostate cancer, a urinary disorder, or a respiratory disorder during service. During the Board hearing, the veteran testified that he did not have any breathing problems during service and that he first began having breathing problems "[r]ight after I got out of the Navy." Id. at 5. The veteran was separated from active service in August 1962. He also testified that he first sought treatment for breathing difficulties in 1977. Id. at 6. However, during the April 2003 DRO hearing, the veteran testified that he was first treated for respiratory difficulty in 1974. DRO April 2003 hearing transcript at 2. These contradictory reports are evidence that the veteran is not a credible historian. The first evidence of a respiratory disorder is found in a January 1980 summary of VA inpatient treatment for a one week history of shortness of breath and a cough. This documents that the veteran had a history of asthma, having been hospitalized in January 1980 at a private facility. He reported that he worked as a construction worker for an oil refinery and he denied any specific known occupational exposure. Importantly, he also reported a 25 year history of smoking tobacco. Chest x-ray showed pulmonary fibrosis, consistent with chronic obstructive pulmonary disease. His condition improved with antibiotic and steroid treatment. Discharge diagnosis was asthma, acute, with pulmonary fibrosis. In August 2000, the veteran filed a claim for VA benefits on the theory that his chronic obstructive pulmonary disease was caused by exposure to gunpowder during service. That claim was denied in January 2001. The veteran was afforded a VA examination in December 2000. The examiner was specifically asked to specify whether the veteran had a respiratory disorder, and if so, whether it is related to service. During the examination the examiner elicited a history from the veteran of his respiratory disorder. Importantly, the veteran stated that he was a smoker and had smoked one pack of cigarettes everyday for the past 40 years. Based on a pulmonary function test, the examiner diagnosed the veteran with moderate restrictive disease. The examiner noted that the veteran's chest X-ray was negative for any significant chronic obstructive pulmonary disease or emphysema. Based upon this examination, the examiner concluded that "the veteran's current lung condition at this time is more likely caused as a result of long and heavy cigarette smoking and less likely as a result of gunpowder exposure in the early 1960s." The Board finds that such a medical finding provides more evidence against this claim. In a letter dated in May 2001, the veteran contended that he suffered from asthma due to inservice exposure to asbestos, gunpowder fumes, cleaning solvents, lead based paints, aluminum based paints, diesel fumes and fuel, and other environmental irritants. An August 2001 pulmonary consult report documents that the veteran had chronic obstructive pulmonary disease with a chronic bronchitic component. During that consult the veteran reported that his breathing difficulty began approximately in 1978. This report differs from his report during the Board hearing, where he stated that his breathing difficulty began immediately after separation from service. This inconsistency is more evidence that the veteran is not a credible historian. During that pulmonary consult, the veteran also reported his belief that he had been exposed to asbestos during service. Significantly, even though the veteran reported asbestos exposure, the physician provided no indication that the veteran's respiratory disorders were related to such exposure. The Board finds it is reasonable to expect that if there was any likelihood that the veteran's respiratory disorder was related to asbestos exposure, or for that matter to service in any respect, the physician would have so commented (in some way). The lack of such comment is found to be very limited evidence against the veteran's claim that his respiratory disorders are related to service, whether from asbestos exposure or otherwise. VA treatment notes from August 1999 document findings of prostatitis. A May 2001 ultrasound study revealed an enlarged prostate. Notes from June 2001 show that the veteran was receiving treatment for prostate cancer. As the veteran indicated during his Board hearing, he had been seen in the Biloxi VA urology clinic in May 2005. Urology notes from that time indicate only that the veteran underwent diagnostic testing. These notes provide no information as to the origin of his prostate cancer. No competent evidence of record, including the VA treatment records from the Biloxi VA Medical Center, indicates a connection between the veteran's prostate cancer and his military service. During the Board hearing, the veteran testified that a VA physician at the Biloxi VA treatment facility had told him that his prostate cancer was caused by service. Board hearing transcript at 11. There is no evidence of record documenting such a statement. The veteran's report of what a physician told him is too attenuated and inherently unreliable to constitute medical evidence. See Robinette v. Brown, 8 Vet. App. 69 (1995). The Board is also aware that lay testimony is competent 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). However, as explained above, the veteran's reports of breathing difficulty immediately after service are not credible. Additionally, the lapse of many years between the veteran's separation from service and the first treatment for the claimed disorders is evidence that his reports, these many years later, of symptoms of a respiratory disorder immediately after separation from service are not credible. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that such a lapse of time is a factor for consideration in determining the credibility of such reports. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). This long period of time between the veteran's separation from service and first report of respiratory symptoms is evidence against his claim. Hence, his reports of onset of symptoms immediately after service are afforded only the most minimal probative weight. The veteran's assertion that his respiratory disorder and prostate cancer were caused by exposure to asbestos, gunpowder fumes, or other irritants is not competent evidence because there is no evidence of record that the veteran had medical knowledge or expertise beyond that of a layperson. See Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). The Board recognizes that some "qausi" medical questions are subject to the reports of a layperson. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Similarly, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Unlike diagnoses of a dislocated shoulder and varicose veins which were the subjects of the Jandreau and Barr decisions, the etiology of the claimed disabilities in this case is far too complex a medical question to be subject to the opinion of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, the Board finds that the veteran's opinion as to whether his claimed disabilities were the result of exposure to asbestos or some other irritant during service is not competent evidence. See Espiritu and Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Finally, the evidence demonstrates that the veteran's prostate cancer did not manifest within on year of separation from active service. Therefore, the presumptive provisions for chronic diseases are not for application. Given the evidence of record, the Board finds that service connection for a respiratory disorder and prostate cancer, to include as a result of exposure to asbestos or other environmental hazards or irritants during service, is not warranted. The December 2000 VA examiner specifically opined that the veteran's respiratory disorder is a result of his 40 year history of heavy smoking and is not related to service. The physician who saw the veteran for the pulmonary consult in August 2001 was aware of the veteran's report of exposure to asbestos during service but made no comment as to any relationship between the veteran's respiratory disorder and that exposure. There is no competent evidence of record that the veteran's respiratory disorder is related to his service. Likewise, there is no competent evidence that the veteran's prostate cancer, diagnosed some four decades after service, is related to his service. The medical evidence of records is in agreement with this evidence. There is no competent evidence to the contrary. It is important to note (both to the veteran and the Court) that the Board has not just found the evidence, overall, to be against this claims, but overwhelming against this claims. The evidence in this case is unusually clear. Because the preponderance of the evidence is against a finding that the veteran's respiratory disorder or prostate cancer is related to service, his claims for service connection must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit- of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letters sent to the veteran in June 2001, January 2002, March 2002, and May 2008. These letters fully addressed all three notice elements. In particular, standing alone the May 2008 satisfied VA's duty to notify. One of the purposes of the joint motion was for the Board to ensure that the veteran had been provided proper VCAA notice. In particular, the parties agreed that the Board should explain how letters that had been sent to the veteran prior to the August 2005 decision satisfied VA's duties under the VCAA. Inferred in the joint motion was that if such letters had not provided sufficient notice, the Board would take steps to have such notice provided. To ensure compliance with the VCAA, the RO sent the veteran an additional letter in May 2008. The letters sent to the veteran in June 2001, January 2002, and March 2002 each told the veteran of the evidence needed to substantiate a claim for service connection and of VA's and the veteran's respective duties in obtaining evidence. The letter dated in March 2002, provided the veteran with notice specific to his claims based on exposure to asbestos. These letters did not provide the veteran with notice as to how VA assigns effective dates and disability ratings. However, as neither the RO nor the Board has granted service connection, any defect in notice as to how effective dates and disability ratings is not prejudicial to the veteran, as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Of note, is that the Federal Circuit has stated that while documents such as a statement of the case or supplemental statement of the case may not be used to satisfy VA's duty to notify under the VCAA, the Federal Circuit has also stated as follows: This is not to say that VCAA notification must always be contained in a single communication from the VA. The statute and regulation are silent regarding the format to be used for the required notification. What the statute and regulation require is that the claimant be given the required information prior to the VA's decision on the claim and in a form that enables the claimant to understand the process, the information that is needed, and who will be responsible for obtaining the information. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Regardless, even if the letters sent to the veteran prior to the initial adjudication did not sufficiently meet VA's duty to notify, any error in the content of the notice was corrected by the letter sent to the veteran in May 2008. When VA's duty to notify was not met prior to the initial decision by the RO, that duty may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) 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 a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial RO decision by way of the letter sent to the veteran in May 2008. The May 2008 letter informed the veteran of evidence necessary to substantiate his claims for service connection for prostate cancer and a respiratory disorder. This letter informed the veteran as to how VA assigns disability ratings and effective dates, in the event that service connection is established. The letter also informed the veteran of the veteran's and VA's respective duties in obtaining evidence. He was asked to either submit any evidence pertinent to his claim to VA or to inform VA of any such evidence and fill out release of information forms so that VA could assist him in obtaining such evidence. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of supplemental statement of the case issued in July 2008, after the notice was provided. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. He also provided testimony during DRO hearings in April 2003 and in April 2008. The RO has obtained VA treatment records. In particular, the RO has associated with the claims file VA treatment records from the Biloxi VA Medical Center, including for the period from June 1998 through June 2007. In a statement signed by the veteran in April 2008, the veteran stated that the claims file contained treatment records covering the period from June 1998 to June 2007 and that all pertinent records from the Biloxi VA Medical Center had been obtained. This closed the record that had been left open during the June 2005 Board hearing. Also associated with the claims file is evidence regarding the veteran's 2001 radiation treatment for prostate cancer at Keesler Air Force Base. A VA medical examination was afforded the veteran with regard to his respiratory disorder in December 2000. While that examination did not specifically address whether the veteran's respiratory disorder was related to asbestos exposure, the examiner attributed the veteran's respiratory disorder to another cause, tobacco use. Additionally, a pulmonary consult report, from August 2001, includes a history provided by the veteran, of asbestos exposure, yet the physician made no mention of exposure to asbestos but did note that the veteran suffered from tobacco addiction. Thus, this evidence is sufficient to decide this appeal. The Board finds that the VA examination addressed the critical question in this case: What caused the problem. An examination was not afforded the veteran with regard to his prostate cancer. However, the first and third prongs of 38 U.S.C. § 5103A(d) are not met in this case. There is no stated association between prostate cancer and asbestos exposure; the in-service prong is not met. Furthermore, there is no competent indication of an association between the veteran's service and his prostate cancer. Of note is that if the veteran's lay theory, completely unsupported by any competent evidence, that his prostate cancer is associated with in-service asbestos exposure, then the third prong of 38 U.S.C. § 5103A(d) is superfluous statutory language. In this regard, every claim for service connection contains an explicit or implicit assertion by the veteran that the claimed disability had onset or was caused by service. An interpretation of a statute that renders part of the statutory language superfluous is to be avoided. See Splane v. West, 216 F.3d 1058, 1068-69 (Fed. Cir. 2000) ("canons of construction requires us to give effect to the clear language of statute and avoid rendering any portions meaningless or superfluous"). For these reasons, the Board declines to afford the veteran a VA examination or obtain a medical opinion regarding his prostate cancer. There is simply nothing to indicate a connection. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs