Citation Nr: 1000110 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 07-07 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type 2, to include as due to herbicide exposure. 2. Entitlement to service connection for asbestosis to include as due to asbestos exposure. 3. Entitlement to service connection for emphysema to include as due to asbestos exposure. 4. Entitlement to service connection for a prostate disorder to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the U.S. Navy from February 1965 to February 1971 and from August 1974 to August 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2008, the Veteran failed to appear at a hearing before the Board. Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). The claim of service connection for diabetes mellitus, type 2, to include as due to herbicide exposure, in which the only evidence of exposure is the receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam, was subject to a stay imposed as a result of the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) in Haas v. Nicholson, 20 Vet. App. 257 (2006). In May 2008, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), reversing the Veterans Court. The United States Supreme Court then denied the petition for a writ of certiorari in January 2009. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). In March 2007, the RO notified the Veteran of the stay. As the stay is no longer in effect, adjudication of the claim is resumed. In light of the Veteran's statement in February 2008, the claim of service connection for diabetes mellitus, type 2, is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Asbestosis since service or currently is not shown. 2. Emphysema was not affirmatively shown to have been present during service; emphysema, first diagnosed after service, is unrelated to an injury, disease, or event of service origin; and there is no credible evidence for the association between emphysema and exposure to Agent Orange equal to or outweighing the credible evidence against such an association. 3. Prostate cancer since service or currently is not shown. CONCLUSIONS OF LAW 1. Asbestosis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). 2. Emphysema to include as due to exposure to asbestos was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). 3. Prostate cancer to include as due to exposure to Agent Orange was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in July 2006 and in January 2008. The Veteran was notified of the evidence needed to substantiate the claims of service connection, namely, evidence of an injury or disease in service or event in service, causing injury or disease or evidence of current disability; evidence of current disability, and evidence of a relationship between the current disability and the injury, disease, or event in service. The notice included the type of evidence needed to substantiate the claims based on exposure to Agent Orange, including medical or scientific evidence of an association between a disability and exposure to Agent Orange. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent there was pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content- complying VCAA notice after which the claims were readjudicated as evidenced by the supplemental statement of the case, dated in April 2008. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. On the claims of service connection for asbestosis and for prostate cancer, in the absence of evidence of any disability during or since service, a VA medical examination or medical opinion is not required to decide the claims under 38 C.F.R. § 3.159(c)(4). On the claim of service connection for emphysema, in the absence of competent evidence of persistent or recurrent symptoms since service or an equivocal medical nexus opinion, a VA medical examination or medical opinion is not required to decide the claims under 38 C.F.R. § 3.159(c)(4). McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Facts The service treatment records, including the reports of entrance and separation examinations, contain no complaint, finding, history, diagnosis, or treatment of asbestosis, emphysema, or prostate cancer. On several occasions between 1981 and 1987, the Veteran had upper respiratory infections, and in 1984 it was recommended that he quit smoking. None of the infections were associated with asbestosis or emphysema. In February 1986, on the Asbestos Medical Surveillance Report, it was shown that the Veteran had been exposed to asbestos in 1965 and 1966 while stationed aboard the USS Long Beach during the overhaul of the ship at the Newport News Naval shipyard and the total duration of exposure was one year. After service, in May 2003, an ultrasound showed a slightly enlarged prostate. Pulmonary testing in May 2003 revealed small airway disease. An undated clinical record included diagnoses of small airway disease, chronic smoker, and benign prostatic hypertrophy with cyst in the right outer zone. During private hospitalization in October and November 2003, history included chronic obstructive pulmonary disease and cigarette smoking for 20 years. In January 2007, history included emphysema and emphysema was listed as an active health problem. Principles of 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. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Where a veteran, who served for ninety days on active duty, develops cancer to a degree of 10 percent or more within one year from separation from service, service connection may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a 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 veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era (beginning in January 1962 and ending in May 1975) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Whenever VA's Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). If a veteran was exposed to an herbicide agent during active military service, the following diseases will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). VA's Secretary has determined that a presumption of service connection based on exposure to certain herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. Notice, 59 Fed. Reg. 341-346 (1994); Notice, 61 Fed. Reg. 41442-41449 and 57586-57589 (1996); Notice, 67 Fed. Reg. 42600- 42608 (2002); Notice, 68 Fed. Reg. 27630- 27641 (2003); and Notice, 72 Fed. Reg. 32395-32407 (2007). Notwithstanding the aforementioned provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholoson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board)). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis Asbestosis On the basis of the service treatment records asbestosis was not affirmatively shown to have been present during service and service connection under 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.303(a) is not established. On the question of whether service connection may be granted on the basis that the claimed disease was first diagnosed after service, considering all the evidence, including that during and after service, under 38 C.F.R. § 3.303(d), asbestosis has not been diagnosed since service or currently. Moreover, asbestosis is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or diagnosis of such a disability therefore is medical in nature. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Nevertheless, under certain circumstances, a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a 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). Asbestosis is not a simple medical condition, such as a broken leg, because the condition cannot be perceived through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (Personal knowledge is that which is perceived through the use of the senses.). For this reason, the Board determines that asbestosis is not a simple medical condition that a lay person is competent to identify. Where, as here, there is a question of a diagnosis, not capable of lay observation, and the claimed disability is not a simple medical condition, and as no factual foundation has been made to establish that the Veteran is qualified through education, training, or experience to offer a medical diagnosis, competent medical evidence is required to substantiate the claims. Therefore the Veteran's statements are excluded, that is, the statements are not to be considered as evidence of current disability. Although the Veteran was exposed to asbestos, in the absence of competent evidence of a diagnosis of asbestosis since service or currently, there can be no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For this reason, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Emphysema Regarding asbestos-related diseases, there is no specific statutory or regulatory provision, pertaining to exposure to asbestos. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), the opinions of the United States Court of Appeals for Veterans Claims (Court), and VA's General Counsel have a general framework. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos- Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1, part VI, paragraph 7.21 (October 3, 1997). VA must adjudicate claims of service connection for a lung disorder, as a residual of exposure to asbestos, under these guidelines. See Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The M21-1 provides that when considering these types of claims, VA must determine whether military records demonstrate evidence of asbestos exposure in service (M21-1, Part III, par. 5.13(b); M21-1, Part VI, par. 7.21(d)(1); determine whether there was pre-service and/or post-service evidence of occupational or other asbestos exposure; and determine if there was a relationship between asbestos exposure and the currently claimed disease, keeping in mind the latency and exposure information found at M21-1, Part III, par. 5.13(a) (M21-1, Part VI, par. 7.21(d)(1). The M21-1 provides the following non-exclusive list of asbestos related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate). M21-1, Part VI, par. 7.21(a)(1) & (2). Also, the M21-1 provides that for a clinical diagnosis of asbestosis, the record must show a history of exposure and radiographic evidence of parenchymal lung disease (M21-1, Part VI, par. 7.21(c)). In this case, the evidence establishes that the Veteran was exposed to asbestos, while his ship was being overhauled, but emphysema is not recognized as a disease that is related to exposure to asbestos. M21-1, Part VI, par. 7.21(a)(1) & (2). On the basis of the service treatment records emphysema was not affirmatively shown to have been present during service and service connection under 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.303(a) is not established. The service treatment records do show that the Veteran was treated for upper respiratory infections. As upper respiratory infections were noted, that is, observed during service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. As for chronicity, as the service treatment records lack the documentation of the combination of manifestations sufficient to identify emphysema, and as there was insufficient observation to establish chronicity during service, then a showing of continuity of symptomatology after service is required to support the claim. After service, in May 2003, pulmonary testing revealed small airway disease. During private hospitalization in October and November 2003, history included chronic obstructive pulmonary disease, which includes emphysema and cigarette smoking for 20 years. In January 2007, history included emphysema and emphysema was listed as an active health problem. The absence of continuity of symptoms traceable to emphysema and not associated with cigarette smoking from 1988 to 2003 interrupts continuity and is persuasive evidence against continuity of symptomatology. 38 C.F.R. § 3.303(b); Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints.). In balancing the Veteran's statements of continuity made in conjunction with his current claim against the lack of continuity of symptomatology in the record from 1988 to 2003, the Board finds that the absence of contemporaneous medical evidence of continuity of symptomatology for almost 15 years outweighs the Veteran's statements, rendering the statements less probative than the medical evidence on the question of continuity of symptomatology. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) ( The lack of contemporaneous medical records may be a fact the Board can consider and weight against the Veteran's lay evidence, and the lack of such records does not, in and of itself, render the lay evidence no credible.). To the extent that emphysema is associated with smoking, service connection may not be granted for disability on the basis that it resulted the use of tobacco products in service. 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. Therefore, any claim for service connection on the basis of tobacco use that began in service would be precluded by law. For this reason, the preponderance of the evidence is against finding continuity of symptomatology under 38 C.F.R. § 3.303(b). On the question of whether service connection for emphysema may be granted on the basis that the disability was first diagnosed after service, considering all the evidence, including that pertinent to service under 38 C.F.R. § 3.303(d), emphysema is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or diagnosis of such a disability therefore is medical in nature. Savage at 498 (1997). Also, emphysema disease is not a simple medical condition, such as a broken leg, because the condition cannot be perceived through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (Personal knowledge is that which is perceived through the use of the senses.). For this reason, the Board determines that emphysema is not a simple medical condition that a lay person is competent to identify. Where, as here, there is a question of a diagnosis, not capable of lay observation, and the claimed disability is not a simple medication condition, the Veteran is not competent to state that the current disability was present during service. To this extent the Veteran's statements are excluded or not admissible, that is, the statements are not to be considered as evidence in support of the claim. And while the Veteran is competent to report a contemporaneous medical diagnosis and the Veteran is competent in describing symptoms, which support a later diagnosis by a medical professional, Jandreau at 1377, there is no evidence from any health-care provider that attributes the current diagnosis of emphysema to an injury, disease, or event during the Veteran's service. For these reasons, while the Veteran's statements are to be considered, the evidence has no probative value, that is, the statements do not tend to prove a material issue of fact, pertaining to the onset of the disability. Where there is a question of medical causation, that is, an association between the current emphysema and an injury, disease, or event in service, where a lay assertion of medical causation is not competent medical evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. As no factual foundation has been established to show that the Veteran is qualified through knowledge, experience, training, or education to offer such an opinion, his statements are not competent evidence and are excluded, that is, the statements are not to be consider as evidence in support of the claim. In sum, there is no competent evidence relating the Veteran's current emphysema to service or to an injury, disease, or event in service. And in the absence of medical evidence suggesting an association between emphysema and exposure to asbestos in service, there is no possible association with service, and no further development of the claim under the duty to assist is warranted. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Whether or not the Veteran was exposed to herbicides during service, emphysema is not a disease subject to the presumption of service connection due to exposure to Agent Orange and there is no competent evidence that his emphysema is directly caused by exposure to Agent Orange. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b) Prostate Cancer On the basis of the service treatment records prostate cancer was not affirmatively shown to have been present during service and service connection under 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.303(a) is not established. On the question of whether service connection may be granted on the basis that the claimed disease was first diagnosed after service, considering all the evidence, including that during and after service, under 38 C.F.R. § 3.303(d), prostate cancer has not been diagnosed. Moreover, prostate cancer is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or diagnosis of such a disability therefore is medical in nature. Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Nevertheless, under certain circumstances, a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a 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). Prostate cancer, a form of cancer, is not a simple medical condition, as noted in Jandreau, that a lay person is competent to identify. Where, as here, there is a question of a diagnosis, not capable of lay observation, and the claimed disability is not a simple medical condition, and as no factual foundation has been made to establish that the Veteran is qualified through education, training, or experience to offer a medical diagnosis, competent medical evidence is required to substantiate the claim. Therefore the Veteran's statements are excluded, that is, the statements are not to be considered as evidence of current disability. In the absence of competent evidence of a diagnosis of prostate cancer since service or currently, there can be no valid claim of service connection. And the Board need not reach the question of whether or not the Veteran was exposed to Agent Orange. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For this reason, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for asbestosis to include as due to exposure to asbestos is denied. Service connection for emphysema to include as due to exposure to asbestos is denied. Service connection for prostate cancer to include as due to exposure to Agent Orange is denied. REMAND On the claim of service connection for diabetes mellitus, type 2, to include as due to herbicide exposure, there is a current diagnosis of diabetes mellitus. And because the Haas stay is no longer in effect, further development is needed. Accordingly, the claim for service connection for diabetes mellitus, type 2, is remanded for the following action: After additional development, if needed, under the duty to assist, adjudicate the claim of service connection for diabetes mellitus, type 2, addressing the Veteran's argument that he was in the inland waterway, not merely the coastal waters, of Vietnam. If the decision remains adverse to the Veteran, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs