Citation Nr: 0905299 Decision Date: 02/13/09 Archive Date: 02/19/09 DOCKET NO. 05-35 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to exposure to asbestos. 2. Entitlement to service connection for diabetes mellitus (DM), to include as due to exposure to asbestos. 3. Entitlement to service connection for arthritis, to include as due to exposure to asbestos. 4. Entitlement to service connection for skin cancer, to include as due to exposure to asbestos. 5. Entitlement to service connection for epilepsy, to include as due to exposure to asbestos. 6. Entitlement to service connection for sleep apnea, to include as due to exposure to asbestos. 7. Entitlement to service connection for cataracts, to include as due to exposure to asbestos. 8. Entitlement to service connection for partial blindness, to include as due to exposure to asbestos. 9. Entitlement to service connection for residuals of radiation exposure. 10. Entitlement to service connection for residuals of exposure to lead paint. 11. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The Veteran served on active duty from March 1962 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2004 and September 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2008, the Veteran testified before the undersigned at a Travel Board hearing. The issues of service connection for residuals of radiation exposure, residuals of exposure to lead paint, and PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Hypertension was not manifest during service, was not manifest within one year of separation, and is not attributable to service to include any claimed asbestos and high frequency radio waves exposure. 2. DM was not manifest during service, was not manifest within one year of separation, and is not attributable to service to include any claimed asbestos and high frequency radio waves exposure. 3. Arthritis was not manifest during service, was not manifest within one year of separation, and is not attributable to service to include any claimed asbestos and high frequency radio waves exposure. 4. Skin cancer was not manifest during service, was not manifest within one year of separation, and is not attributable to service to include any claimed asbestos and high frequency radio waves exposure. 5. Epilepsy was not manifest during service, was not manifest within one year of separation, and is not attributable to service to include any claimed asbestos and high frequency radio waves exposure. 6. Sleep apnea is not attributable to service to include any claimed asbestos and high frequency radio waves exposure. 7. Cataracts are not attributable to service to include any claimed asbestos and high frequency radio waves exposure. 8. Partial blindness is not attributable to service to include any claimed asbestos and high frequency radio waves exposure. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 2. DM was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 3. Arthritis was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 4. Skin cancer was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 5. Epilepsy was not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 6. Sleep apnea was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2008). 7. Cataracts were not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2008). 8. Partial blindness was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, VCAA letters dated in June and September 2004 were sent to the claimant and fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notifications: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; and (3) informed the claimant about the information and evidence that the claimant is expected to provide. In addition, the claimant was provided notice regarding asbestos exposure as required by M21-1, Part VI, para. 7.21. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333-34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the United States Court of Appeals for Veterans Claims (Court) found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) In Sanders v. Nicholson, 487 F. 3d 881 (2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (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. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non- prejudicial." Vazquez-Flores. If any notice deficiency is present in this case, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Sanders; see also Simmons v. Nicholson, 487 F. 3d 892 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service treatment records, service personnel records, and VA medical treatment records, have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. The Board also finds that a VA examination is not necessary to determine whether his claimed disabilities are related to his period of honorable service, as the standards of the recent decision of the Court in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. Under McLendon, VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Id at 81. In this case, none of his service treatment records reflect claimed disabilities. Also significant is the fact that the claimed disabilities were first identified decades after his period of honorable service, and the record contains no competent evidence suggesting or indicating a relationship between the claimed disabilities and the Veteran's service. In light of these findings, the guidelines set forth in McLendon have not been met. Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA or the Court. Since the Board has concluded that the preponderance of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). Competency and Credibility The Veteran contends that that his claimed disabilities are related to service to include claimed inservice asbestos and high frequency radio waves exposure. With regard to lay evidence, the Board must initially evaluate if the evidence is competent. If so, credibility must be assessed. The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). Thus, while the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the Veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the veteran is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 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")). See Barr. The issues do not involve a simple diagnosis. See Jandreau; see also Woehlaert. The Veteran is not competent to provide more than simple medical observations. The current claimed disabilities may not be diagnosed via lay observation alone and the Veteran is not competent to provide a complex medical opinion regarding the etiology of the claimed disability. See Barr. Thus, the Veteran's lay assertions are not competent or sufficient. Asbestos Exposure As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, 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. M21-1, Part VI, para. 7.21 also contains guidelines for the development of asbestos exposure cases. Part (a) 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. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period 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). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. The Veteran claims that he was exposed to asbestos during service aboard the USS Essex, as well as paint fumes, which resulted in his claimed disabilities addressed in this decision. The Board notes, however, that the claimed disabilities are not among those associated with asbestos exposure cited above per M21-1, Part VI, para. 7.21. Further, as indicated and addressed below, a medical nexus is required to establish service connection. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. See VAOPGCPREC 4-00. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, hypertension, DM, arthritis, skin cancer, malignant tumors, and organic disease of the central nervous system, will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, 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. 38 C.F.R. § 3.303(d). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). If lay testimony is determined to be credible, it establishes two of the three elements required for service connection under 38 C.F.R. § 3.303(b): (1) that the condition was "noted" in service, and (2) evidence of post-service continuity of the same symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). The third element, evidence of a relationship between the present disability and the postservice symptomatology, may be established through lay testimony if the relationship and the disability are capable of lay observation. See id; Hickson v. West, 12 Vet. App. 247, 253 (1999). However, laypersons are not competent to render medical opinions. Barr, see also Grover v. West, 12 Vet. App. 109, 112 (1999). As noted above, the Veteran in this case is not competent to provide more than a simple medical observation. The Veteran is not competent to make a complex medical diagnosis or to provide a medical opinion regarding the etiology thereof. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Hypertension The service treatment records reflect that in October 1963, the Veteran reported feeling dizzy upon arising after having a cigarette. His blood pressure was 120/88 and he was noted to be hypotensive. In May 1964, his blood pressure was taken after he experienced lightheadedness. It was 130/78. He was noted to have hyperventilation syndrome. In February 1965, the Veteran's blood pressure reading was 114/76. The Veteran was examined prior to separation in March 1965. The heart and vascular system were normal. The blood pressure reading was 122/78. There was no diagnosis of hypertension. Post-service, there was no manifestation or diagnosis of hypertension in the initial post-service year. The Veteran testified that he was diagnosed as having hypertension within three years of his discharge from service; however, there is no supporting evidence. Rather, the evidence establishes that the Veteran has had hypertension since the 2000's, over 30 years after his separation from service. In sum, the competent evidence does not establish that hypertension began in service or within one year of separation. The service treatment records showed no diagnosis of hypertension and the Veteran's blood pressure with within normal limits upon discharge in that regard. Thus, there was no chronic disability shown during service. Further, there is no continuity of symptomatology following service. There is no record of any continuous symptoms from his separation from service onward. Rather, the record establishes that many years after his service separation, the Veteran was diagnosed with, and treated for, hypertension. Despite the Veteran's contentions that his hypertension is related to service to include claimed inservice asbestos high frequency radio waves exposure, the record is devoid of supporting evidence and there is no competent nexus evidence. Further, service connection requires that hypertension be manifest during service, within the presumptive year (not three years), or be related by competent evidence to service. That is not the case here. Accordingly, service connection is not warranted. DM The service treatment records reflect do not reflect any complaints, findings, treatment, or diagnosis of DM. On separation examination, the Veteran's urine testing was negative for sugar. His endocrine system was normal. Post-service, there was no manifestation or diagnosis of DM in the initial post-service year. The Veteran testified that he was diagnosed as having DM within the past several years. The VA treatment records reflect a diagnosis of DM since 2003. There is no competent evidence relating the post-service diagnosis of DM made nearly 40 years after service discharge to service. In sum, the competent evidence does not establish that DM began in service or within one year of separation. The service treatment records showed no diagnosis of DM and the Veteran was normal upon discharge in that regard. Thus, there was no chronic disability shown during service. Further, there is no continuity of symptomatology following service. There is no record of any continuous symptoms from his separation from service onward. Rather, the record establishes that nearly four decades after his service separation, the Veteran had a diagnosis of DM. Despite the Veteran's contentions that his DM is related to service to include claimed inservice asbestos and high frequency radio waves exposure, the record is devoid of supporting evidence and there is no competent nexus evidence. In essence, the Veteran's assertions of chronicity and continuity are unsupported. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (normal medical findings at the time of separation from service, as well as absence of any medical records of a diagnosis or treatment for many years after service, is probative evidence against a claim.). Accordingly, service connection is not warranted. Arthritis The service treatment records do not reflect any complaints, findings, treatment, or diagnosis of arthritis. In May 1964, the Veteran reported having back pain radiating down his left leg. The impression was mild back strain. He was not diagnosed as having arthritis. The separation examination reveals a normal musculoskeletal system. In addition, examination of all of the joints was normal, including the spine. Post-service, there is no record of any manifestations or diagnosis of arthritis in the initial post-service year. Rather, the VA records show that the Veteran has been diagnosed as having osteoarthritic changes in the spine in 2005. There is no competent evidence establishing an etiological connection between the documentation of osteoarthritic changes in the spine in 2005 and any other diagnosed arthritis and service. The Veteran testified that he was diagnosed as having arthritis 15-20 years ago. Such an assertions dates initial diagnosis to the mid-1980's, at the earliest. In sum, the competent evidence does not establish that arthritis began in service or within one year of separation. The service treatment records showed no diagnosis of arthritis and the Veteran was normal upon discharge in that regard. Thus, there was no chronic disability shown during service. Further, there is no continuity of symptomatology following service. There is no record of any continuous symptoms from his separation from service onward. Rather, the record establishes that nearly four decades after his service separation, the Veteran had a diagnosis of arthritis. Despite the Veteran's contentions that his arthritis is related to service to include claimed inservice asbestos and high frequency radio waves exposure, the record is devoid of supporting evidence and there is no competent nexus evidence. Accordingly, service connection is not warranted. Skin Cancer The service treatment records do not reflect any complaints, findings, treatment, or diagnosis of skin cancer. The separation examination reveals that the Veteran's skin was normal other than identifying body marks, scars, or tattoos. Post-service, there is no record of any manifestations or diagnosis of skin cancer in the initial post-service year. Rather, the VA records show that the Veteran has been treated for various skin lesions since the 2000's. There is no competent evidence establishing an etiological connection between skin cancer and service. The Veteran testified that he was diagnosed as having skin cancer 15-20 years ago. Such an assertions dates initial diagnosis to the mid-1980's, at the earliest. In sum, the competent evidence does not establish that skin cancer began in service or within one year of separation. The service treatment records showed no diagnosis of skin cancer and the Veteran was normal upon discharge in that regard. Thus, there was no chronic disability shown during service. Further, there is no continuity of symptomatology following service. There is no record of any continuous symptoms from his separation from service onward. Rather, the record establishes that nearly three decades after his service separation, the Veteran had skin lesions. Despite the Veteran's contentions that skin cancer is related to service to include claimed inservice asbestos and high frequency radio waves exposure, the record is devoid of supporting evidence and there is no competent nexus evidence. Accordingly, service connection is not warranted. Epilepsy The service treatment records do not reflect any complaints, findings, treatment, or diagnosis of epilepsy. The separation examination reveals that the Veteran's neurological system was normal. As noted, he complained of dizziness on two occasions during service, but his complaints were not attributed to epilepsy. Post-service, there is no record of any manifestations or diagnosis of epilepsy in the initial post-service year. In 2004, the Veteran suffered a stroke. He has since experienced right sided tremors. However, the record does not reflect that the Veteran has a diagnosis of epilepsy and he has not claimed service connection for a stroke. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Epilepsy was not manifest during service, was not manifest within one year of separation, and is not attributable to service to include any claimed asbestos and high frequency radio waves exposure. In fact, in the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Absent a current diagnosis, service connection is not warranted. Accordingly, service connection is not warranted. Sleep Apnea The service treatment records do not reflect any complaints, findings, treatment, or diagnosis of sleep apnea. The separation examination revealed no diagnosis of this disorder. Post-service, there is no record of any manifestations or diagnosis of sleep apnea for decades. VA records dated in the 2000's document the Veteran's complaints of sleep apnea and the request for obstructive sleep apnea evaluation. However, by his own admission, the Veteran has only had this problem for 20 years, dating the onset of sleep apnea decades after his separation from service. There is no competent evidence establishing an etiological connection between sleep apnea and service. In sum, the competent evidence does not establish that sleep apnea began in service or is related to service, to include any claimed asbestos, paint, and high frequency radio waves exposure. There is no record of any continuous symptoms from his separation from service onward. Rather, the record establishes that decades after his service separation, the Veteran had reported sleep apnea. Despite the Veteran's contentions that sleep apnea is related to service to include claimed inservice asbestos and high frequency radio waves exposure, the record is devoid of supporting evidence and there is no competent nexus evidence. Accordingly, service connection is not warranted. Cataracts and Partial Blindness The service treatment records show that on entrance, the Veteran's vision was 20/20 in both eyes. In March 1962, his vision was 20/20 in both eyes. On separation examination, his vision was still 20/20. The VA records, dated in the 2000's, document a history of cataract surgery from the early 1990's. In addition, eye examinations reflect diagnoses of pseudophakia, presbyopia, and anisometropia. The Veteran indicated that he underwent cataract surgery 6 years after he left service. He stated that his private physician felt that the cataracts were the result of service; however, the Veteran could not recall the complete name of the private physician and there is no competent evidence to this effect of record. Rather, as noted, the VA records dated the surgery to the early 1990's. In sum, the competent evidence does not establish that any eye problem began in service or is related to service, to include any claimed asbestos, paint, and high frequency radio waves exposure. There is no record of any continuous symptoms from his separation from service onward. Rather, the record establishes that decades after his service separation, the Veteran had eye problems, including cataracts. Despite the Veteran's contentions that his eye problems, including cataracts and his claimed partial blindness, are related to service to include claimed inservice asbestos and high frequency radio waves exposure, the record is devoid of supporting evidence and there is no competent nexus evidence. Accordingly, service connection is not warranted. Conclusion The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claims, and they must be denied. ORDER Service connection for hypertension is denied. Service connection for diabetes mellitus is denied. Service connection for arthritis is denied. Service connection for skin cancer is denied. Service connection for epilepsy is denied. Service connection for sleep apnea is denied. Service connection for cataracts is denied. Service connection for partial blindness is denied. REMAND The RO denied, generally, entitlement to service connection for residuals of radiation exposure and entitlement to service connection for residuals of exposure to lead paint. However, a VCAA letter was not sent as to these issues. The Veteran claims that he has PTSD due to inservice sexual and physical assault. The service treatment records reflect that in February 1965, it was noted that the Veteran had a nervous disorder and he was given Librium. A sexual assault was not documented in the service treatment or personnel records. The Veteran claims that while he was in the brig of the USS Essex, he was forced to perform a sexual act on a Marine in charge, named Lance Corporal J.F. (see page 35 of Travel Board hearing transcript for full name) and that he was thereafter physically assaulted by this person's friends. He submitted lay evidence from J.F. indicating that he recalled that he had heard that the Veteran had been beaten up. VA attempted to verify the Veteran's claimed stressor through the Naval Criminal Investigative Service Headquarters, but this agency indicated that there had not been any investigation. The Veteran has also stated that Lance Corporal J.F. was court-martialed. The Board finds that in an effort to comply with VA's duty to assist, the AMC/RO should attempt to verify through the appropriate channels to include the Marine Corps whether Lance Corporal J.F. was court-martialed in 1964-1965. This person's service personnel or military records should not be associated with the Veteran's claims file; rather, a memorandum should be prepared indicating whether there was a court martial, and, if so, the basis for the court martial. Accordingly, this matter is REMANDED for the following actions: 1. The AMC should review the record and ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority as to the issues of entitlement to service connection for residuals of radiation exposure and entitlement to service connection for residuals of exposure to lead paint. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); VAOPGCPREC 7-2004 (July 16, 2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide 2. The AMC/RO should attempt to verify through the appropriate channels to include the Marine Corps whether Lance Corporal J.F. (see page 35 of Travel Board hearing transcript for full name) was court-martialed in 1964-1965. This person's service personnel or military records should not be associated with the Veteran's claims file; rather, a memorandum should be prepared indicating whether there was a court martial, and, if so, the basis for the court martial. 3. The AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant 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. 2008). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs