Citation Nr: 1014863 Decision Date: 04/19/10 Archive Date: 04/30/10 DOCKET NO. 05-08 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a liver condition, claimed as secondary to herbicide, asbestos or ionizing- radiation exposure. 2. Entitlement to service connection for prostate cancer, claimed as secondary to herbicide, asbestos or ionizing- radiation exposure. 3. Entitlement to service connection for residuals of a tumor of the mandible, claimed as secondary to herbicide, asbestos or ionizing-radiation exposure. 4. Entitlement to service connection for a stomach condition, claimed as secondary to herbicide, asbestos or ionizing-radiation exposure. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1961 to November 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran had a hearing before the Board in January 2007 and the transcript is of record and was reviewed. In addition, the Board previously remanded the aforementioned claims for further evidentiary development in May 2007. The Board notes that the development requested was only partially completed. Specifically, the Board requested that the following information be obtained: treatment records, dating from June 2003 to the present, from the Philadelphia, Pennsylvania VA Medical Center (VAMC); the Veteran's Official Military Personnel File; verification through Joint Service Records Research Center (JSRRC) of the Veteran's Vietnam service and exposure to herbicides, specifically Agent Orange; November 1964 to January 1965 unit records for the 1611th Communication & Electronics Maintenance Squadron (CEMS); records from the Defense Finance Accounting Service regarding the Veteran's special pay status from November 1964 to November 1965; and finally verification of the Veteran's exposure to asbestos and radiation. The Board also requested that the Veteran be provided a VA examination for his claimed stomach condition to determine if any current stomach condition is related to the Veteran's in-service complaints and treatments for chronic constipation and stomach pains. As will be further explained in the Remand section below, the Board finds that this request was not completed and therefore must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998) (stating that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). As noted, the issue of entitlement to service connection for a stomach condition, claimed as secondary to herbicide, asbestos or ionizing-radiation exposure 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. The Veteran is not shown to have been exposed to asbestos, herbicides, or ionizing radiation during service. 2. A liver condition is not shown to have been present during the Veteran's military service, or for years thereafter, nor is this condition the result of any incident occurring during his military service, including his claimed exposure to radiation, herbicides, or asbestos. 3. Prostate cancer is not shown to have been present during the Veteran's military service, or for years thereafter, nor is this condition the result of any incident occurring during his military service, including his claimed exposure to radiation, herbicides or asbestos. 4. Residuals of a tumor of the mandible are not shown to have been present during the Veteran's military service, nor are any residuals the result of any incident occurring during his military service, including his claimed exposure to radiation, herbicides, or asbestos. CONCLUSIONS OF LAW 1. A liver condition was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred, to include as due to in-service exposure to radiation, herbicides, or asbestos. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2009). 2. Prostate cancer was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred, to include as due to in-service exposure to radiation, herbicides, or asbestos. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2009). 3. Residuals of a tumor of the mandible were not incurred in or aggravated by active military service, nor may they be presumed to have been so incurred, to include as due to in- service exposure to radiation, herbicides, or asbestos. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.311 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2009); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letters dated in September 2003 and May 2008 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, these letters advised the Veteran what information and evidence was needed to substantiate the claims decided herein. These letters also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. On March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The May 2008 letter provided this notice to the Veteran. The Board observes that the September 2003 letter was sent to the Veteran prior to the February 2004 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice in accordance with Dingess, however, was sent after the initial adjudication of the Veteran's claim. Nevertheless, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the May 2008 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a) (2007), 38 C.F.R. § 3.159(b) (2009), and Dingess, supra, and after the notice was provided the case was readjudicated and a November 2009 supplemental statement of the case (SSOC) was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed. In addition, the duty to assist the appellant has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his identified VA and private medical treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As indicated in detail below, the RO has also completed all necessary development related to the Veteran's alleged in-service ionizing radiation exposure, herbicide exposure, and asbestos exposure. See 38 C.F.R. §§ 3.307, 3.309, 3.311 (2009). Finally, the Board concludes that a medical opinion concerning the etiology of the conditions claimed on appeal is not required. In making this determination, the Board notes that the Veteran has not established any in-service exposure to ionizing radiation, herbicides, or asbestos. In addition, there is no treatment shown for a liver condition, prostate cancer, or a tumor of the mandible during service, or within the first post service year. Moreover, there is no evidence of any of these conditions for many years after the Veteran's discharge from the service, and there is no indication that any claimed condition is associated with the Veteran's service, or any incident occurring therein, to include claimed exposure to ionizing radiation, herbicides or asbestos. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Under the circumstances of this case, "the record has been fully developed," and "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). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis The Veteran in this case is seeking entitlement to service connection for a liver disorder, prostate cancer, and a tumor of the mandible. He attributes all of these conditions to in-service exposure to ionizing radiation, herbicides, and asbestos. The Veteran claims that he was exposed to microwave radiation while performing his duties as a radio repairman. The Veteran further claims that he was exposed to herbicides and asbestos while working on aircraft that contained asbestos and herbicides. Specifically, the Veteran noted at his January 2007 hearing that the airplanes in which he repaired radios on were insulated with asbestos. He was exposed to herbicides that had leaked into the wiring and cables on the airplanes in which he repaired radios both in the United States and on claimed temporary duty in Vietnam. Additionally, the Veteran claims exposure to herbicides while on temporary duty in Vietnam. The Veteran was assigned to the 1611th Communication & Electronics Maintenance Squadron (CEMS). The Veteran was stationed at McGuire Air Force Base in Trenton, New Jersey, but claims to have been sent for approximately 25 missions to other Air Force bases in the U.S. and, on temporary duty assignments to Saigon, Vietnam, to work on repairing radios in airplanes. At his January 2007 hearing, the Veteran testified that he was sent on various temporary duty assignments in 1965 to various Air Force bases in the U.S and to Saigon, Vietnam, to repair radio equipment inside various airplanes. The Veteran stated that he was exposed to the asbestos in the insulation of the plane when he had to repair cables and wiring in order to make repairs on the radio equipment. See Hearing Transcript, p. 3. His exposure to herbicides occurred while working on cables and wires that ran the length of the floor of the plane that had become saturated with herbicides and Agent Orange leaked from barrels transported on the aircraft. See Hearing Transcript, p. 12. The Veteran was exposed to microwave radiation while working on the Wave guide, a Doppler search radar in the nose of the plane that, according to the Veteran, gave off microwave rays. See Hearing Transcript, p. 12. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection for certain chronic diseases will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). I. Herbicide Exposure There are statutory presumptions and VA regulations implementing them, that are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted. See 38 C.F.R. § 3.303(d) (2008). In the case of a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, VA regulations provide that he shall be presumed to have been exposed during such service to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2009). The following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) (2009) are satisfied: chloracne or other acneform disease consistent with chloracne if manifest to a degree of 10 percent within one year of date of last exposure, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2009). VA's Secretary has determined that a presumption of service connection based on exposure to 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. See 68 Fed. Reg. 27,630 (May 20, 2003). Initially, the Board notes that the Veteran's claimed liver disorder and tumor of the mandible are not conditions to which the presumption applies. The Board acknowledges, however, that the Veteran's claimed prostate cancer is one of the diseases for which the presumption applies, however, for the reasons stated below the presumption does not apply in this instance. General Counsel Opinion, VAOPGCPREC 27-97 (July 23, 1997), stated that claimants must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service sufficient to raise the presumption of exposure to Agent Orange. Service in a deep water naval vessel in waters off the shore of the Republic of Vietnam does not constitute service in the Republic of Vietnam. See VAOPGCPREC 27-97 (O.C.G. Prec. 27-97). However, 'service in the Republic of Vietnam' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). See also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (upheld VA's requirement that a claimant must have been present within the land borders of Vietnam at some point in the course of his or her military duty in order to be entitled to the presumption of herbicide exposure under 38 U.S.C. § 1116(a)(1) and 38 C.F.R. § 3.307(a)(6)(iii)). See also 38 C.F.R. § 3.313 (2008). The Board acknowledges that the Veteran does not claim that he was stationed in Vietnam, but rather that his trips to Vietnam were temporary duty assignments. The Veteran contends that he made an estimated 12 trips in to Vietnam to work on aircraft in Saigon. However, the record does not indicate that the Veteran ever set foot in Vietnam according to the National Personnel Records Center (NPRC). Although it is noted that departure and arrival of individual unit members and aircraft flight paths are not included in unit histories, the U.S. Armed Services Center for Unit Records Research was unable to document or verify that the Veteran had missions to Vietnam. Finally, the Veteran's Official Military Personnel File (OMPF) does not indicate that the Veteran was assigned to duty in Vietnam. Indeed the file indicates that the Veteran was stationed at Lackland Air Force Base in Texas from November 1961 to December 1961; Keesler Air Force Base in Mississippi from December 1961 to February 1962; McGuire Air Force Base in New Jersey from October 1962 to November 1965; and finally Headquarters Air Reserve Records Center (CONAC) in Denver, Colorado. Additionally, the NPRC reported that there is no evidence that the Veteran was exposed to herbicides. The U.S. Armed Service Center for Unit Records Research was also unable to document or verify that Agent Orange damaged any aircraft. . The Board notes that the Veteran provided PDY payment statements from the Social Security Administration indicating that his salary increased temporarily for certain periods of time. The Veteran claims that these increases were based on temporary duty assignments to other Air Force bases in the U.S. to repair radio equipment inside airplanes. The Veteran noted at his hearing that these payments did not apply to his trips to Vietnam, but just to verify that he did have temporary duty assignments for which he was given extra pay for expenses. The RO requested the Veteran's Mater Military Pay Account (MMPA) records from the Defense Finance and Accounting Service-Denver Center Records Management Office (DFAS-RSAB/DE), however the records for the period of 1964 to 1965 were unable to be located. The Board acknowledges that the Veteran's pay did increase slightly for various periods, however, these pay statements do not indicate why the Veteran's pay increased and they are not sufficient to verify that the Veteran had temporary duty assignments to any where in the U.S. or in Vietnam as they merely note that the Veteran was in the Air Force at the time of payment. Therefore, while the Veteran is suffering from prostate cancer, which is included as one of the presumptive diseases for herbicide, there is no evidence that the Veteran ever served in-country in Vietnam or that he was exposed to herbicides. Additionally, the Board notes that the Veteran's liver condition and residuals of a tumor of the mandible are not included as presumptive diseases for herbicide exposure. As such, the Board finds that the Veteran cannot be service connected for prostate cancer, a liver condition, or residuals of a tumor of the mandible as due to herbicide exposure. II. Asbestos Exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). In this regard, the M21-1 MR provides the following non- exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, 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), and cancers of the gastrointestinal tract. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (f). As noted above, the Veteran contends that he was exposed to asbestos that was in the insulation of the planes in which he repaired radios. The Board notes that the RO requested records indicating exposure to Asbestos. The Veteran's record does not indicate that he was exposed to asbestos, nor does his military occupational specialty indicate that he had an occupation that had a higher incidence of asbestos exposure. Additionally, while the Board notes that the Veteran does have residuals of tumors of the mandible and that tumors are listed as part of the non-exclusive list for asbestos-related diseases, there is no indication in the medical records that the Veteran's residuals of a tumor in the mandible is related to asbestos exposure. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the United States Court of Appeals for Veterans Claims (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 VAOGCPPREC 04-00. The diseases typically associated with asbestos exposure affect the lungs and digestive tract. With regard to whether the Veteran suffers from any lung disorder, as is typical with asbestos exposure, the Veteran stated at his January 2007 hearing that he does not have any lung disorder. The Board notes that there is no indication in the medical records that the Veteran's liver condition or prostate cancer is related to asbestos exposure. Indeed with regard to the prostate cancer, diseases of the prostate are specifically noted not to be associated with asbestos exposure. As such the Board finds that the Veteran is not entitled to service connection for prostate cancer, a liver condition, or residuals of a tumor of the mandible as due to asbestos exposure. III. Ionizing and Microwave Radiation Exposure Service connection for a disability claimed to be attributable to exposure to ionizing radiation, during service can be demonstrated by various methods. See Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are specific diseases which may be presumptively service-connected if manifest in a radiation-exposed Veteran. A 'radiation-exposed Veteran' is defined by 38 C.F.R. § 3.309(d)(3) as a Veteran who, while serving on active duty or on active duty for training or inactive duty training, participated in a radiation-risk activity. 'Radiation-risk activity' is defined to mean onsite participation in a test involving the atmospheric detonation of a nuclear device; the occupation of Hiroshima, Japan or Nagasaki, Japan by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946; internment as a prisoner of war (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupational forces in Hiroshima or Nagasaki during the period from August 6, 1945 through July 1, 1946; or the Veteran's presence at certain specified additional locations. See 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. The presumptively service-connected diseases specific to radiation-exposed Veterans are the following: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin's disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary gland, cancer of the urinary tract, bronchiolo- alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 C.F.R. § 3.309(d)(2). After reviewing the evidence of record, the Board finds that the Veteran is not shown to be a 'radiation-exposed Veteran' as that term is defined in 38 C.F.R. § 3.309(d)(3). Moreover, a liver condition, prostate cancer, and residuals of a tumor of the mandible are not listed as conditions warranting presumptive service connection for radiation-exposed Veterans. 38 C.F.R. § 3.309(d)(2). The Board does note that liver cancer is a presumptive disease, however, the Veteran is not diagnosed with liver cancer, but rather the Veteran suffers from an enlarged liver. As such, service connection for a liver condition, prostate cancer, and residuals of a tumor of the mandible, is not warranted under this presumption. The second avenue of recovery is found under 38 C.F.R. § 3.311(b)(2). This provision provides that certain listed 'radiogenic' diseases found 5 years or more after service in an ionizing-radiation-exposed Veteran may be service connected if the VA Undersecretary for Benefits determines that they are related to ionizing radiation exposure while in service or if they are otherwise linked medically to ionizing radiation exposure while in service. Pursuant to 38 C.F.R. § 3.311(b)(2), radiogenic diseases include the following: all forms of leukemia except chronic lymphatic (lymphocytic) leukemia, thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2). A disease is also considered a radiogenic disease where competent scientific or medical evidence that the claimed condition is a radiogenic disease is received. See 38 C.F.R. § 3.311(b)(4). In this regard, the Veteran suffers from residuals of a tumor of the mandible, which has been specifically diagnosed as a recurrent ameloblastoma. Ameloblastoma is a generally benign tumor often occurring in the mandible. There is no evidence of record that the Veteran's tumor has been found to be malignant. As such, the Board finds that the Veteran's tumor of the mandible is not a radiogenic disease. Therefore, as neither an enlarged liver nor a recurrent ameloblastoma of the left mandible are shown to be radiogenic diseases as defined in 38 C.F.R. § 3.311(b)(2), and given that there is no competent evidence of record suggesting that either of these conditions is a radiogenic disease, service connection for a liver condition and residuals of a tumor of the mandible, as due to in-service exposure to ionizing radiation, must be denied. See 38 C.F.R. § 3.311(b)(4). However, the Board notes that the Veteran has been diagnosed with prostate cancer, which is a radiogenic disease. The Veteran stated at his January 2007 hearing, his exposure to radiation occurred while working on radio equipment and wiring including some equipment that would put him in contact with Wave guide Doppler radar equipment, all of which emitted microwave radiation. The Court of Appeals for Veterans Claims has taken judicial notice that such radio equipment emits microwave-type non-ionizing radiation. Rucker v. Brown, 10 Vet. App. 67, 69, 71-2 (1997) (citing The Microwave Problem, Scientific American, September 1986; Effects upon Health of Occupational Exposure to Microwave Radiation (RADAR), American Journal of Epidemiology, Vol. 112, 1980; and Biological Effects of Radiofrequency Radiation, United States Environmental Protection Agency, September 1984. The evidence supports that the Veteran was a technician who worked on radio equipment while on active duty service. Indeed, according to his DD-214, the Veteran's military occupational specialty (MOS) was listed as radio repairman. Such equipment does not emit ionizing radiation, but rather, as even the Veteran asserts, microwave radiation. As such, the Board finds that the provisions associated with 38 C.F.R. § 3.311 requiring further development with the presence of a radiogenic disease (i.e. prostate cancer) are not applicable in this instance as the Veteran was not exposed to ionizing radiation. While the Board finds that the Veteran was not exposed to ionizing radiation, it is conceded that he was exposed to microwave radiation and as such, the Board must determine whether the Veteran is entitled to service connection as a result of exposure to microwave radiation. The Board notes initially that there is no presumption for microwave radiation exposure. The Veteran has provided no evidence that his claimed disabilities are the result of microwave radiation. Additionally, there is no competent medical evidence of record that the Veteran's liver condition, prostate cancer or residuals of a tumor of the mandible are etiologically related to microwave radiation exposure. As such, the Board finds that the Veteran is not entitled to service connection for a liver condition, prostate cancer or residuals of a tumor of the mandible as a result of microwave radiation exposure. Finally, the Board notes the Veteran's statements that he suffers from prostate cancer, a liver condition, and residuals of a tumor of the mandible that are related to his active duty service due to in-service exposure to microwave radiation, ionized radiation, herbicides, and and/or asbestos, and while the Veteran as a lay person is competent to provide evidence regarding any symptomatology, he is not competent to provide evidence regarding diagnosis, including the severity of a disease or disorder, or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (confirming that, 'in some cases, lay evidence will be competent and credible evidence of etiology'). However, the possibility of a causal relationship between a disability and exposure to microwave radiation, ionized radiation, herbicides, and asbestos requires specialized training for a determination as to causation, and is therefore not susceptible of lay opinions on etiology. Only a medical professional can provide evidence regarding etiology of a disease or disorder. Thus, the Veteran's statements are afforded no probative value with respect to the medical question of whether his claims are related to any exposure to microwave radiation, ionized radiation, herbicides or asbestos that the Veteran might have suffered while in service. Under these circumstances, the Board concludes that the Veteran was not exposed to microwave radiation, ionizing radiation, herbicides or asbestos during service. Thus, service connection for the claims on appeal, due to microwave radiation, ionizing radiation, herbicides, and/or residuals of a tumor of the mandible, is not warranted. As such, the Board will limit its analysis to a direct service connection as required by Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). IV. Direct Service Connection As noted above, in order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). A. Liver Condition The Board notes that the Veteran is currently diagnosed with a hepatomegaly as evidenced by an ultra-sound done in June 2003. The report associated with the ultra-sound revealed that the Veteran suffers from an enlarged liver with presumably fatty infiltration. As such the Board finds that the Veteran does have a current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). While the Veteran does have a current disability there is no competent evidence that the Veteran suffered from any liver condition while in-service. Indeed, the Veteran's service treatment records are devoid of any mention of a liver condition and his June 1965 separation examination lists the Veteran's endocrine system as normal. A review of the evidence does not support the claim of service connection for a liver disorder on a direct basis. The Veteran's service treatment records are negative for any liver disorder, and there is no medical evidence that this disorder is related to his military service. In making this determination, the Board points out that the first evidence of the Veteran having been diagnosed with a liver condition appears in 2003, over thirty-five years after his discharge from the service. This gap in the evidentiary record preponderates strongly against this claim on the basis of continuity of symptomatology. See Mense v. Derwinski, 1 Vet. App. 354 (1991). The Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the maladies at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, there is no medical evidence of record that the Veteran's liver condition is related to his military service. Indeed the Veteran stated at his January 2007 travel board hearing that there is no evidence that his liver condition is related to his active duty service. Finally the Board notes the Veteran's statements that he suffers from a liver condition and while the Veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis, including the severity of a disease or disorder, or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder. Thus, the Veteran's statements are afforded no probative value with respect to the medical question of whether his liver condition is related to his active duty service. With consideration of all of the above, while the Veteran does have a current disability, there is no evidence that the Veteran suffered from a liver condition while on active duty and in the absence of competent medical evidence that the Veteran's liver condition is related to his military service, the preponderance of the evidence is against the Veteran's claim for service connection for a liver condition. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Prostate Cancer Initially, the Board acknowledges that the Veteran was diagnosed with prostate cancer in May 2005 according to VAMC treatment records. As such the Board finds that the Veteran does have a current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). While the Veteran does have a current disability there is no competent evidence that the Veteran suffered from prostate cancer while in-service. Indeed, the Veteran's service treatment records are devoid of any mention of prostate cancer and his June 1965 separation examination lists the Veteran's anus and rectum as normal specifically noting that a digital examination of the prostate and rectum produced normal results. A review of the evidence does not support the claim of service connection for prostate caner on a direct basis. The Veteran's service treatment records are negative for this disorder, and there is no medical evidence that this disorder is related to his military service. In making this determination, the Board points out that the first evidence of the Veteran having been diagnosed with any disorder associated with the prostate occurred in 2003 with a diagnosis of benign hypertrophy of the prostate gland and as noted above the Veteran was not diagnosed with prostate cancer until 2005. Even giving the Veteran the benefit of the doubt his first diagnosis is over thirty-five years after his discharge from the service. This gap in the evidentiary record preponderates strongly against this claim on the basis of continuity of symptomatology. See Mense v. Derwinski, 1 Vet. App. 354 (1991). The Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the maladies at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, there is no medical evidence of record that the Veteran's prostate cancer has been determined by any medical professional to be related to his military service. Finally the Board notes the Veteran's statements that he suffers from prostate cancer and while the Veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis, including the severity of a disease or disorder, or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder. Thus, the Veteran's statements are afforded no probative value with respect to the medical question of whether his prostate cancer is related to his active duty service. With consideration of all of the above, while the Veteran does have a current disability, there is no evidence that the Veteran suffered from prostate cancer while on active duty and in the absence of competent medical evidence that the Veteran's prostate cancer, is related to his military service, the preponderance of the evidence is against the Veteran's claim for service connection for prostate cancer. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Residuals of a Tumor of the Mandible Initially, the Board acknowledges that the Veteran was diagnosed with a recurrent ameloblastoma of the left mandible body area in an April 2003 VAMC treatment report. The Board notes that a private consultation report dated April 2002, indicates that the Veteran had previously had surgery associated with the tumor in his mandible. The Board also notes that the Veteran stated that he has had issues with a tumor in his mandible since 1969. As such the Board finds that the Veteran does have a current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). While the Veteran does have a current disability there is no competent evidence that the Veteran suffered from residuals of a tumor of the mandible while in-service. Although the Board does acknowledge that the Veteran did have dental treatment while in service, there is no indication that he was treated for a tumor of the mandible. Indeed, the Veteran's service treatment records are devoid of any mention of a tumor of the mandible or any residuals and his June 1965 separation examination lists the Veteran's mouth and throat as normal. A review of the evidence does not support the claim of service connection for residuals of a tumor of the mandible on a direct basis. The Veteran's service treatment records are negative for this disorder, and there is no medical evidence that this disorder is related to his military service. Finally the Board notes the Veteran's statements that he suffers from residuals of a tumor of the mandible and while the Veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis, including the severity of a disease or disorder, or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However only a medical professional can provide evidence of a diagnosis or etiology of a disease or disorder. Thus, the Veteran's statements are afforded no probative value with respect to the medical question of whether his residuals of a tumor of the mandible are related to his active duty service. With consideration of all of the above, while the Veteran does have a current disability, there is no evidence that the Veteran suffered from residuals of a tumor of the mandible while on active duty and in the absence of competent medical evidence that the Veteran's residuals of a tumor of the mandible are related to his military service, the preponderance of the evidence is against the Veteran's claim for service connection for residuals of a tumor of the mandible. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a liver condition, claimed as secondary to herbicide, asbestos or ionizing- radiation exposure is denied. Entitlement to service connection for prostate cancer, claimed as secondary to herbicide, asbestos or ionizing- radiation exposure is denied. Entitlement to service connection for residuals of a tumor of the mandible, claimed as secondary to herbicide, asbestos or ionizing-radiation exposure is denied. REMAND As noted in the INTRODUCTION above, this appeal was remanded in May 2007 with instructions to the AOJ to provide the Veteran with a VA examination to determine whether any current stomach condition is related to stomach issues suffered in service. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. As such, another remand, with ensuing delay, is unfortunately required. In this case, the service medical records do indicate continuous complaints and treatments for chronic constipation and ulcer as well as at least one specific complaint of lower abdominal 'crampy' pain with constipation. Currently, the Veteran is diagnosed with gastro-esophageal reflux disease (GERD) and possibly an ulcer. The pre- and post- service medical records are not dispositive, but they are enough to raise the possibility that the claimed stomach condition could be related to his in-service stomach complaints, such as to mandate obtaining a medical opinion. See Duenas v. Principi, 18 Vet. App. 512 (2004). A VA examination is indicated for the Veteran's stomach condition. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2009); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that a request for an examination was made in August 2009, but there is no indication in the file whether the examination was ever scheduled or conducted. In consideration of the foregoing criteria, the Board finds that the Veteran should be afforded an examination that includes a nexus opinion that addresses the existence and etiology of any current stomach disorder. Accordingly, the case is REMANDED for the following action: 1. After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination for his claimed stomach condition. The physician should provide an opinion as to whether it is at least as likely as not that any current stomach condition is related to the Veteran's in-service complaints and treatments for chronic constipation and stomach pains. The claims folder must be reviewed by the examiner and the examiner should provide a complete rationale for any opinion given. It would be helpful if the examiner would use the following language, as may be appropriate: 'more likely than not' (meaning likelihood greater than 50%), 'at least as likely as not' (meaning likelihood of at least 50%), or 'less likely than not' or 'unlikely' (meaning that there is a less than 50% likelihood). The term 'at least as likely as not' does not mean 'within the realm of medical possibility.' Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 2. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the Veteran has submitted evidence sufficient to warrant entitlement to the benefits sought. Unless the benefits sought on appeal are granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case (SSOC) and afforded an opportunity to respond. 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. 2009). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs