Citation Nr: 1032303 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 08-05 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for radiogenic disease due to ionizing radiation exposure. 2. Whether new and material evidence has been received to reopen a claim for service connection for manifestations of right shoulder strain, to include residuals of a crushed body and head and neck injury. 3. Entitlement to service connection for loss of left testicle, status post hydrocelectomy and epididymectomy (also claimed as tumors), to include as due to herbicide exposure. 4. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 5. Entitlement to a compensable rating for cholecystectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active military service from April 1966 to March 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction of this matter was subsequently transferred to the RO in Nashville, Tennessee. In May 2009, the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record. During the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. With regard to each of the petitions to reopen claims for service connection on appeal, the Board must address the question of whether new and material evidence has been received to reopen a claim for service connection in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board has characterized these issues as on the title page. The issue of service connection for a thyroid disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for right shoulder strain, to include residuals of a crushed body and head and neck injury, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed July 1992 decision, the RO declined to reopen a claim of service connection for radiogenic disease due to ionizing radiation exposure, finding that the evidence did not show that the Veteran had a radiogenic disease. 2. Evidence received since the July 1992 rating decision, while new, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for radiogenic disease due to ionizing radiation exposure. 3. In an unappealed October 1987 decision, the Board denied the Veteran's claim of service connection for residuals of a crush injury involving the head, neck, and shoulders on the basis the Veteran's service injury to his right shoulder was acute and transitory in nature and had resolved completely in service. 4. The additional evidence submitted since the October 1987 Board decision, which consists of the Veteran's hearing testimony, is new, relates to an unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for manifestations of right shoulder strain, to include residuals of a crushed body and head and neck injury. 5. It is not shown that the Veteran set foot on land in the Republic of Vietnam or was exposed to an herbicide agent (to include Agent Orange) during service. 6. A left testicle disorder was not shown in service or for many years thereafter, and there is no competent evidence of a nexus between a loss of left testicle status post hydrocelectomy and epididymectomy (also claimed as tumors), first documented many years after service, and the Veteran's active military service, to include the Veteran's claimed in-service exposure to herbicides. 7. There is no competent evidence showing a current disability of diabetes mellitus. 8. The Veteran's service-connected cholecystectomy is manifested by complaints of pain in the right flank and a need for self- imposed dietary restrictions. CONCLUSIONS OF LAW 1. The RO's July 1992 rating decision declining to reopen the claim for service connection for radiogenic disease due to ionizing radiation exposure is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2009). 2. As new and material evidence has not been received, the criteria for reopening the claims for service connection for radiogenic disease due to ionizing radiation exposure have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. The Board's October 1987 decision denying the Veteran's claim for service connection for manifestations of right shoulder strain, to include residuals of a crushed body and head and neck injury, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2009). 4. As new and material evidence has been received, the criteria for reopening the claim for service connection for manifestations of right shoulder strain, to include residuals of a crushed body and head and neck injury have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 5. The criteria for service connection for loss of left testicle status post hydrocelectomy and epididymectomy (also claimed as tumors), to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107 ((West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 6. The criteria for service connection for diabetes mellitus, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1116, 5103, 5103A, 5107 ((West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 7. Resolving all reasonable doubt in the Veteran's favor, the criteria for a disability rating of 10 percent, and not higher, for cholecystectomy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.114, Diagnostic Code 7318 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009) 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) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, 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; (2) that VA will seek to provide; and (3) that the claimant is expected to provide, 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, to include the AMC). 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. With regard to the petition to reopen the claims of service connection on appeal, a January 2007 letter notified the Veteran that to reopen his previously denied claims for service connection for radiogenic disease due to ionizing radiation exposure and for manifestations of right shoulder strain, to include residuals of a crushed body and head and neck injury, VA had to receive new and material evidence, and these letters further defined what constituted new and material evidence specific to the reason his claims were previously denied. Thus, the guidance of Kent v. Nicholson, 20 Vet. App. 1 (2006) has been satisfied by this letter. Moreover, as to the right shoulder issue, the instant decision reopens the claim, so any notice deficiency as to that issue is deemed to be harmless error. With regard to the claims of service connection for loss of left testicle status post hydrocelectomy and epididymectomy (also claimed as tumors), to include as due to herbicide exposure, for diabetes mellitus, to include as due to herbicide exposure, and the claim for an increased (compensable) rating for cholecystectomy, a January 2007 pre-rating letter provided notice to the Veteran of the evidence and information needed to substantiate his claims. The January 2007 letter also provided the Veteran with information regarding disability ratings and effective dates consistent with Dingess/Hartman (cited above). Hence, the January 2007 letter-which meets all of Pelegrini's content of notice requirement- also meets the VCAA's timing of notice requirement. The Board also notes that following the issuance of the January 2007 notice letter described above, and opportunity for the Veteran and his representative to respond, the RO readjudicated the claims (as reflected in December 2008 and January 2009 SSOCs). Hence, the Veteran is not shown to be prejudiced by the timing of any notice letters. 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). Additionally, the record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence of record includes the Veteran's service treatment records, VA medical records, private medical records, reports of the Veteran's exposure to radiation in service, and the report of a March 2007 digestive disorder examination. Also of record and considered in connection with the appeal is the transcript of the May 2009 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 the claims herein decided, 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 any claim(s). 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 matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (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. Petitions to Reopen Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). A. Radiogenic disease Service connection for a condition claimed as due to radiation exposure can be established in one of three ways: (1) by demonstrating that the condition at issue is one of the types of cancer that are presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309; (2) by demonstrating direct service connection under 38 C.F.R. § 3.303, a task that "includes the difficult burden of tracing causation to a condition or event during service," Combee v. Brown, 34 1039, 1043 (Fed. Cir. 1994); or (3) by demonstrating direct service connection under 38 C.F.R. § 3.303, with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is one of the "radiogenic diseases" listed by the Secretary in § 3.311(b). See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997). Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(b)(5) requires that breast cancer or skin cancer become manifest 5 years or more after exposure. 38 C.F.R. § 3.311(b)(5). In a final October 1987 decision, the Board denied the Veteran's claim of service connection for residuals of exposure to ionizing radiation. At that time, the Board determined that while the Veteran had been shown to have been exposed to ionizing radiation in service, there was no evidence showing that he had received treatment or diagnosis for any radiogenic disease pursuant to 38 C.F.R. § 3.311(b). The most recent final denial of the claim was in a July 1992 rating decision. At that time, the RO determined that new and material evidence to reopen the claim for service connection radiogenic disease due to exposure to ionizing radiation had not been received, as the record still failed to show that the Veteran had a radiogenic disease. While the Veteran submitted evidence showing recent treatment for left epididymitis and hydrocele and left testalgia, such are not among the list of radiogenic diseases under 38 C.F.R. § 3.311. The evidence of record at that time of the July 1992 rating decision included the Veteran's service treatment records and a DD Form 1141 showing that between October 1969 and June 1970 the Veteran was exposed to an accumulated dose of 0.023 rems of ionizing radiation. Additionally, the claims file contained private medical records showing treatment for various disorders, none of which are deemed radiogenic diseases, an April 1987 transcript of an RO hearing in which the Veteran provided testimony of his exposure to ionizing radiation, a March 1989 private bio-assay report showing that the Veteran had mixed levels of radio-isotopes related to his Navy duties while diving, private medical records from Blount Memorial hospital dated in 1991 regarding the Veteran's left testicle, and a January 1992 VA radiation exposure examination which found that he had no radiogenic-related diseases. Although notified of the RO's denial in July 1992, the Veteran did not initiate an appeal; hence, the July 1992 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran sought to reopen his claim in September 2006. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). Under 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not "merely cumulative" of other evidence that was then of record. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Pertinent evidence added to the record since the final July 1992 RO decision includes private medical records from S. M., M.D. reflecting treatment for intermittent prostatitis and epididymitis, as well as duplicate copies of evidence previously submitted, to include a March 1989 private bio-assay report showing that the Veteran had mixed levels of radio-isotopes related to his Navy duties while diving. Also added to the record are an April 2007 CT evaluation report of the entire thorax showing a nodule in the right lower lobe, a May 2007 and an April 2008 Worker Health Protection Program report and CT scan of chest showing no nodules suspicious for lung cancer were detected, a December 2008 private radiology report showing an impression of activity in the right lobe of the thyroid, small cyst, and a March 2009 private neurology report diagnosis mild to moderate, sensorimotor peripheral polyneuropathy of the bilateral lower extremities, and the May 2009 transcript of the Board hearing in which the Veteran testified that his thyroid problem was related to his exposure and he reiterated prior assertions regarding his exposure to radiation in service. The Board finds that the additional medical evidence received is "new" in the sense that it was not previously before agency decision makers. However, the Board also finds that this evidence is not "material," in that it does not provide any competent evidence or opinion that the Veteran currently has a radiogenic disease related to service, the central question underlying the claim for service connection. Specifically, no radiogenic disease listed in 38 C.F.R. § 3.311 is alleged or shown. Moreover, the Veteran has not identified or submitted any competent scientific or medical evidence that any disorder from which he currently suffers is due to in-service exposure to ionizing radiation, nor has his testimony indicated a continuity of symptomatology dating back to service. Hence, the new medical evidence does not raise a reasonable possibility of substantiating the Veteran's claim, and therefore, does not provide a basis for reopening the claim. As to this issue, the only additional evidence associated with the claims file consists of statements and testimony from the Veteran and by his representative, on his behalf, which essentially duplicate his contentions at the time of the last final denial. Indeed, the Veteran has always asserted that he has a radiogenic disease due to active service, and his statements to this effect received after July 1992 are redundant and merely re-state the premise of his earlier claims. In any event, even if new, such statements do not raise a reasonable possibility of substantiating the claim, given the absence of medical evidence of a radiogenic disease, any medical evidence tending to suggest that any current disorder is due to radiation exposure in service, and any lay or medical evidence of continuous symptomatology since service. Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for radiogenic disease due to ionizing radiation exposure has not been received. As such, the appeal must be denied. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally- disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). B. Manifestations of right shoulder strain The Board previously considered and denied the Veteran's claim for service connection for manifestations of a right shoulder strain in an October 1987 decision, which, at that time, was characterized as residuals of a crush injury involving the head, neck and shoulder. Evidence of record at the time of this decision included the Veteran's service treatment records showing that in November 1969, while connecting a line, he was caught in between two boats. An examination showed possible muscle strain to the right shoulder. The Veteran's separation examination showed a normal clinical evaluation of the upper extremities. Private medical records include a November 1982 Bragg Chiropractic Clinic record showing complaints of right shoulder pain and the Veteran's reports that his shoulder was crushed in service. The diagnosis was right subdeltoid bursitis associated with subluxation of C5 C6 vertebrae. Records dated in 1984 and 1985 reflect treatment for complaints of pain in the left shoulder and arm. During an April 1987 Board hearing, the Veteran testified that he crushed his shoulders while diving between a barge during heavy storms in service. In an October 1987 decision, the Board denied the Veteran's claim of service connection for residuals of a crush injury involving the head, neck, and shoulders on the basis that the Veteran's service injury to his right shoulder was acute and transitory in nature and had resolved completely in service. In so finding, the Board noted the normal separation examination. Unless the Chairman orders reconsideration, or one of the other exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Because the Veteran did not appeal to the Court and because the Board Chairman did not order reconsideration, the Board's October 1987 decision is final based on the evidence then of record. Id. The Veteran sought to reopen his claim in September 2006. The question is whether the requirements under 38 C.F.R. § 3.156, as set forth previously, have been met here. Pertinent evidence added to the record since the Board's October 1987 final decision includes the May 2009 Board hearing transcript in which the Veteran asserted consistent right shoulder problems since active service. New private medical records have also been added to the record. However, they do not address the Veteran's right shoulder or any claimed residuals from a crush injury in service. In this case, the Veteran's hearing testimony, to the extent that it reflects contentions of continuous right shoulder problems since service, is non-redundant. Indeed, at the last final decision, a basis for denial of the claim was the gap in time between discharge and post-service complaints. The May 2009 hearing testimony demonstrates that the Veteran was having difficulty with his right shoulder during such time period. Thus, the testimony relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the requirements under 38 C.F.R. § 3.356(a) have been met and the claim is reopened. The underlying service connection claim will be addressed in the remand portion of this decision. III. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). Diabetes mellitus is among the diseases listed in § 3.309 for which presumptive service connection is available based on in- service herbicide exposure; however, loss of a left testicle is not. The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Notwithstanding the foregoing, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984) does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155 (1997). With regard to presumptive service connection, as to the Veteran's alleged in-service herbicide exposure, the Board finds that the Veteran does not have "service in Vietnam," such that exposure to herbicides may not be presumed. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). "Service in Vietnam" for purposes of applying the herbicide presumption includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962 to May 7, 1975. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.313(a). In fact, on May 8, 2008, the Federal Circuit issued its decision in Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), where it confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. A Veteran who never went ashore from ship on which he served in Vietnamese coastal waters was not entitled to presumptive service connection due to alleged Agent Orange / herbicide exposure. Haas, 525 F.3d at 1193-1194. In addition, the Federal Circuit held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal. See Haas, supra. See also VAOPGCPREC 7-93 (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); and VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). In this case, the Veteran asserts that he served aboard aircraft carriers in the coastal waters of Vietnam. He does not contend that he went ashore from the ship. In fact, he testified during the May 2009 Board hearing that he never set foot or went ashore in Vietnam. Therefore, it cannot be presumed that the Veteran was exposed to a herbicide agent during his service. A. Loss of left testicle The Veteran contends that he suffered a loss of his left testicle, status post hydrocelectomy and epididymectomy due to exposure to agent orange while aboard the U.S.S. Yorktown CVS-10 off the coast of Vietnam. In this case, the Veteran's Form DD-214 indicates that he was a fireman. He was awarded the Vietnam Service and Campaign Medals for his service. Neither of those medals specifically indicates that the Veteran served on the landmass of the Republic of Vietnam, and again, the Veteran has not so claimed. Service treatment records indicate that the Veteran served onboard the U.S.S. Yorktown in 1968 and 1969; however, there is no indication that the Veteran served on the landmass of the Republic of Vietnam. Moreover, as noted above, the Veteran testified during the May 2009 Board hearing that he never set foot or went ashore in Vietnam from the ship he served upon while in Vietnamese coastal waters onboard the U.S.S. Yorktown. Therefore, in light of the above, it cannot be presumed that the Veteran was exposed to herbicide agents during his service. Furthermore, loss of a left testicle is not among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. Regarding direct service connection, service treatment records are negative for complaints, findings, or treatment for the Veteran's left testicle. Post-service, a December 1990 private medical record reflects that the Veteran was evaluated for his left testicle. The Veteran stated that he noticed some swelling in the areas of the left testicle for several months. The examiners believed that the Veteran had epididymitis and possibly a small reactive hydrocele. A March 1991 private medical record reflects that the Veteran had a left hydrocelectomy and epididymectomy due to left epididymitis and hydrocele. A December 1991 surgical report reflects that the Veteran underwent left inguinal orchiectomy due to left testalgia. During the May 2009 Board hearing, the Veteran asserted that he was exposed to Agent Orange while off the coast of Vietnam due to the evaporators that made fresh water and boiler water, in that there would be a certain amount of Agent Orange that he would have been exposed to from the water intake. In this case, there is no documentation of any injury or finding with respect to the Veteran's left testicle in service. The Veteran was first seen for complaints of a left testicle disorder in December 1990, more than 19 years after separation from service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints). The Board acknowledges that the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, however, he has not asserted a history of continuous symptoms as to this disability. Accordingly, continuity of symptomatology has not been established, either by the clinical record or by the Veteran's own statements. Furthermore, there is no competent medical evidence or opinion that the Veteran's loss of left testicle status post hydrocelectomy and epididymectomy (also claimed as tumors), is related to his military service, to include herbicide exposure - and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any such opinion. In short, there is no competent medical evidence to support the claim for service connection for loss of left testicle status post hydrocelectomy and epididymectomy (also claimed as tumors). The Veteran himself believes that the loss of his left testicle, status post hydrocelectomy and epididymectomy was caused by his active service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. For all the foregoing reasons, the claim of entitlement to service connection for loss of left testicle status post hydrocelectomy and epididymectomy (also claimed as tumors), to include herbicide exposure must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of- the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Diabetes mellitus The Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and 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 Caluza v. Brown, 7 Vet. App. 498, 505 (1995); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet. App. 141, 143 (1992). As noted, the initial requirement for establishing a valid claim for service connection consists of evidence of a current disability, as mentioned above, and with regard to the Veteran's claimed diabetes mellitus, this objective criterion has not been met. A December 1991 chest x-ray report reflects a question of the Veteran being a diabetic. An October 2004 laboratory report shows that the Veteran had a glucose level of 96, which is considered within the normal range of 65 to 99. A November 2004 laboratory report shows that the Veteran has a glucose level of 126 which is considered out of the normal range of 65 to 99. In a March 2009 private neurology record, the Veteran reported a history of borderline diabetes. In this case, the Board finds that the medical evidence fails to establish that the Veteran has diabetes mellitus, and neither the Veteran nor his representative has presented, identified, or even alluded to the existence of any medical evidence of a current diagnosis of diabetes mellitus. A single finding of a high glucose level on one date is not the equivalent of a medical diagnosis of diabetes mellitus. Therefore, the claim for service connection for a disorder manifested by dizziness must be denied because the first essential criterion for a grant of service connection- evidence of a current disability upon which to predicate a grant of service connection-has not been met. See Brammer, supra. The Board has considered the Veteran's testimony and assertions regarding having diabetes mellitus. In this regard, 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. In this case, the criteria under Jandreau have not been met. Indeed, diabetes is not readily observable as a broken leg would be, and no diagnoses contemporaneous or subsequent to the Veteran's assertions are of record. For the foregoing reasons, the claim for service connection for diabetes mellitus must be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine; however, in the absence of any competent evidence to support the claim, 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). IV. Increased rating Disability evaluations are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet .App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The RO has evaluated the Veteran's cholecystectomy as noncompensable under Diagnostic Code 7318, for gall bladder removal. Under Diagnostic Code 7318, a noncompensable rating is warranted where the condition is nonsymptomatic; a 10 percent rating is warranted where there are mild symptoms; and, a 30 percent rating is warranted for severe symptoms. In a March 2007 VA digestive examination report, the Veteran denied diarrhea, but complained of residual pain in the right flank. The diagnosis was cholecystectomy with residual right upper quadrant tenderness. During the May 2009 Board hearing, the Veteran described his symptoms as necessitating a restricted diet. He described being unable to eat high acid foods, dairy products, and greasy foods. He says that he had symptoms once or twice a week. By resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's disability more nearly approximates the symptoms which are necessary for a 10 percent rating under Diagnostic Code 7318. The Veteran has complained of pain in the right flank and has reported a need for dietary restrictions. These findings are deemed to establish mild symptoms. The record does not most nearly approximate severe symptoms, precluding assignment of the next-higher 30 percent evaluation. The Board has also considered whether any alternate code sections might afford a higher rating. In this regard, there is no showing of severe alternating diarrhea and constipation such as to warrant an evaluation of 30 percent under Diagnostic Code 7319. Moreover, despite his right upper quadrant tenderness, the record does not demonstrate persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Accordingly, a 30 percent rating under Diagnostic Code 7346, concerning hiatal hernia, is not appropriate. There are no other relevant diagnostic codes for consideration here. In sum, throughout the rating period on appeal, a 10 percent evaluation is warranted for the Veteran's cholecystectomy. However, a rating in excess of that amount is not justified. In reaching these conclusions, the benefit of the doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additionally, the Board finds that at no point during the appeal period has the Veteran's cholecystectomy been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2009). In this case, the Board finds that schedular criteria are adequate to rate the Veteran's service-connected cholecystectomy under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) has not been met. See Thun v. Peake, 22 Vet. App. 111 (2008). In summary, resolving doubt in favor of the Veteran, the Board concludes that a 10 percent rating is warranted for the Veteran's service-connected cholecystectomy. The Board concludes that the preponderance of the evidence is against assigning a rating in excess of 30 percent, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER New and material evidence having not been received, the application to reopen the claim for service connection for radiogenic disease due to ionizing radiation exposure is denied. New and material evidence having been received, the application to reopen the claim of service connection for manifestations of right shoulder strain, to include residuals of a crushed body and head and neck injury, is granted. Service connection for loss of left testicle status post hydrocelectomy and epididymectomy (also claimed as tumors), to include as due to herbicide exposure, is denied. Service connection for diabetes mellitus, to include as due to herbicide exposure, is denied. Entitlement to a 10 percent rating, but no more, for cholecystectomy is granted, subject to the law and regulations governing the award of monetary benefits. REMAND As noted previously, the claim of entitlement to service connection for a right shoulder disability has been reopened. From a review of the December 2008 supplemental statement of the case, it is clear that the RO did not consider the claim reopened. Indeed, the supplemental statement of the case found that the recently submitted evidence was new, but not material. Consequently, the RO did not adjudicate the merits of the underlying service connection claim. Such must be accomplished before the Board may proceed with appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, in light of the Veteran's credible testimony as to consistent right shoulder problems since service, he should be afforded a VA examination to determine the etiology of any current right shoulder disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all treatment providers with respect to his right shoulder disorder. After securing any necessary authorization, request all identified records. Any negative search should be noted in the record and communicated to the Veteran. 2. Schedule the Veteran for a VA orthopedic examination. The examiner should review the claims file and perform any necessary tests. Following an objective evaluation, the examiner should identify all current diagnoses referable to the right shoulder. For each diagnosis listed, the examiner should opine whether it is at least as likely as not that such disorder is related to the Veteran's active service. A clear rationale should accompany any opinion provided. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 3. Upon completion of the above, readjudicate the issue on appeal and consider all evidence received since issuance of the most recent supplemental statement of the case. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as 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. 2202). ____________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs