Citation Nr: 1030192 Decision Date: 08/12/10 Archive Date: 08/24/10 DOCKET NO. 09-50 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of rheumatic heart disease. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for multiple joint disease of the neck, back and feet. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension. 5. Entitlement to service connection for coronary artery disease (CAD). 6. Entitlement to service connection for leukoplakic lesion right eye (claimed as growth on right eye). 7. Entitlement to service connection for a lung disorder. 8. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1948 to April 1953. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The record reflects the Veteran initially requested a Board hearing in conjunction with this appeal, and that such a hearing was scheduled for June 2010. However, the Veteran canceled his hearing request via an April 2010 statement. FINDINGS OF FACT 1. All reasonable notification and development necessary for the disposition of the instant case have been completed. 2. Service connection was originally denied for rheumatic heart disease by a December 1988 decision. The Veteran was informed of this decision, including his right to appeal, and did not appeal. 3. The denial of service connection for rheumatic heart disease was continued by decisions dated in December 1990 and February 1991, the latter of which also denied service connection for a neck disorder. The Veteran appealed the February 1991 rating decision, but the Board denied these issues in a May 1996 decision. 4. Service connection was originally denied for diabetes, hypertension, and arthritis of multiple joints by a December 2002 rating decision. In addition, this decision continued the denial of service connection for rheumatic heart disease and neck disorder. The Veteran was informed of this decision, including his right to appeal, and did not appeal. 5. A March 2005 rating decision confirmed and continued the denials of service connection for a arthritis of the cervical spine (i.e., neck disorder), rheumatic heart disease, hypertension, and diabetes. The Veteran was informed of this decision, including his right to appeal, and did not appeal. 6. A February 2007 rating decision, in part, confirmed and continued the denials of service connection for a arthritis of the cervical spine (i.e., neck disorder), rheumatic heart disease, hypertension, and diabetes. Although the Veteran attempted to submit a "Notice of Disagreement" to that rating decision in October 2007, he was informed by correspondence dated in November 2007 that it was not being accepted as such because he did not indicate which issue(s) he was disagreeing with in that decision. The letter also indicated that if he did provide such specific information, he would have a valid Notice of Disagreement. However, no clarification was subsequently submitted by the Veteran. 7. Although the evidence received since the last prior denial of service connection for rheumatic heart disease, hypertension, diabetes, and multiple joint disease was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate any of these claims, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating any of these claims. 8. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran's CAD, leukoplakic lesion right eye, and lung disorder were incurred in or otherwise the result of his active service. 9. There is no competent medical evidence that the Veteran has been diagnosed with tinnitus. CONCLUSIONS OF LAW 1. New and material evidence not having been received to reopen a claim of entitlement to service connection for residuals of rheumatic heart disease, the benefit sought on appeal is denied. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a), 3.159 (2009). 2. New and material evidence not having been received to reopen a claim of entitlement to service connection for multiple joint disease of the neck, back and feet, the benefit sought on appeal is denied. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a), 3.159 (2009). 3. New and material evidence not having been received to reopen a claim of entitlement to service connection for diabetes, the benefit sought on appeal is denied. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a), 3.159 (2009). 4. New and material evidence not having been received to reopen a claim of entitlement to service connection for hypertension, the benefit sought on appeal is denied. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a), 3.159 (2009). 5. CAD was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 6. Leukoplakic lesion right eye was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 7. A lung disorder was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 8. Service connection is not warranted for tinnitus. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via letters dated in March and April 2008, which is clearly prior to the December 2008 rating decision that is the subject of this appeal. He was also sent additional notification via a September 2009 letter, followed by readjudication of the appeal by the December 2009 Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Taken together, the aforementioned VCAA letters informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio. Moreover, these letters included information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) With respect to the new and material evidence claims, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court established significant requirements regarding the content of the notice necessary for those cases involving the reopening of previously denied claims. Specifically, the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his or her entitlement to the underlying claim for the benefit sought by the claimant. In this case, the Board notes that the correspondence sent to the Veteran noted the prior denials and the basis for the denials, informed him that new and material evidence was required to reopen the previously denied claims, and explained the requirements for new and material evidence by language consistent with the relevant regulatory provisions. As such, the Board finds that the Veteran has received adequate notification in accord with the requirements established in Kent. The Board also notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his claims have indicated familiarity with the requirements for the benefits sought on appeal. For example, statements submitted by his accredited representative in April and June 2010 include citations to relevant statutory provisions and caselaw. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). This finding is further supported by the fact the Veteran has had multiple claims for VA benefits in the past, and received prior VCAA notification in reference thereto. All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. Various post-service medical records have been obtained and considered in conjunction with this appeal. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any other relevant evidence that has not been obtained or requested. As noted in the Introduction, he withdrew his request for a Board hearing in conjunction with this appeal. The Board acknowledges that the Veteran's service treatment records are not on file as they may have been destroyed in a fire. In fact, the RO made a formal finding as to the unavailability of these records in a January 2006 memorandum, and detailed all efforts to obtain these records. Under such situations the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of- the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217- 18 (2005) (wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The Board also notes that the Veteran has not been accorded a VA medical examination regarding any of the current appellate claims. However, under the law, an examination is not required in the context of new and material evidence claims unless such evidence has already been obtained or presented. See 38 C.F.R. § 3.159(c)(4)(iii); see also 66 Fed. Reg. 45,620, 45,628 (August 29, 2001). In this case, as detailed below, the Board finds that new and material evidence has not been received to reopen the previously denied claims of rheumatic heart disease; multiple joint disease of the neck, back and feet; diabetes; and hypertension. The statutory duty to assist the veteran does not arise if the veteran has not presented new and material evidence to reopen his claim. Anderson v. Brown, 9 Vet. App. 542, 546 (1996). The Board further finds that the evidence of record is sufficient to render a decision regarding the other service connection claims, and that an examination and/or opinion is not warranted based on the facts of this case. In reaching the above conclusion, the Board acknowledges McLendon v. Nicholson, 20 Vet. App. 79 (2006), which states that in disability compensation (service connection) claims, VA must provide a medical examination [for a nexus opinion, as applicable] when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the evidence does not indicate that the claimed CAD, lung disorder may be related to service or to a service-connected disability, even under the low threshold of McLendon. Moreover, as will be discussed below a diagnosis of tinnitus has not been rendered, thus the first element of McLendon is not met. In view of the foregoing, the Board finds that the duty to assist a claimant has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). General legal criteria - service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also observes that the Veteran currently has no service-connected disabilities. As such, there is no basis to warrant consideration of secondary service connection pursuant to 38 C.F.R. § 3.310. In addition, as there is no competent medical evidence of any of the claimed disabilities until many years after the Veteran's separation from service, consideration of the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309(a) for chronic diseases is not warranted either. Analysis - New and material evidence Initially, the Board observes that service connection was previously denied on multiple occasions for rheumatic heart disease; multiple joint disease of the neck, back and feet; diabetes; and hypertension. For example, service connection was originally denied for rheumatic heart disease by a December 1988 decision. The Veteran was informed of this decision, including his right to appeal, and did not appeal. Thereafter, the denial of service connection for rheumatic heart disease was continued by decisions dated in December 1990 and February 1991, the latter of which also denied service connection for a neck disorder. The Veteran appealed the February 1991 rating decision, but the Board determined that new and material evidence had not been received to reopen the claim of service connection for rhematic heart disease, and denied entitlement to service connection for a neck disorder. Service connection was originally denied for diabetes, hypertension, and arthritis of multiple joints by a December 2002 rating decision. In addition, this decision continued the denial of service connection for rheumatic heart disease and neck disorder. A subsequent March 2005 rating decision confirmed and continued the denials of service connection for a arthritis of the cervical spine (i.e., neck disorder), rheumatic heart disease, hypertension, and diabetes. The Veteran was informed of both decisions, including his right to appeal, and did not appeal. Finally, a February 2007 rating decision, in part, confirmed and continued the denials of service connection for a arthritis of the cervical spine (i.e., neck disorder), rheumatic heart disease, hypertension, and diabetes. Although the Veteran attempted to submit a "Notice of Disagreement" to that rating decision in October 2007, he was informed by correspondence dated in November 2007 that it was not being accepted as such because he did not indicate which issue(s) he was disagreeing with in that decision. The Board observes that such action is consistent with the provisions of 38 C.F.R. § 20.201. The letter also indicated that if he did provide such specific information, he would have a valid Notice of Disagreement. Although he did submit additional evidence, no clarification was subsequently submitted by the Veteran. The law states that filing of additional evidence does not extend the time limit for filing an appeal. 38 C.F.R. § 20.304. In view of the foregoing, the Board concludes that these prior denials are all final. See 38 U.S.C.A. §§ 5108, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Here, the evidence on file at the time of the prior denials includes post-service medical records which appear to cover a period from 1974 to 2007, as well as statements submitted by and on behalf of the Veteran to include testimony at an August 1991 RO hearing. Initially, the Board notes that the Veteran previously contended that his rheumatic heart disease, multiple joint disease, diabetes, and hypertension all developed while on active military service. He indicated that he had no such problems prior to the military. He also indicated that he developed angina/chest pain while on active duty, and that these problems were subsequently attributed to rheumatic fever. Further, he indicated that his neck disorder originated with an in-service injury to his head and neck, and provided details in support thereof. Moreover, a January 1992 lay statement from his spouse supported his account of symptomatology since his military service. The post-service medical records include various notations of a reported history of rheumatic fever in 1949, but no findings of rheumatic heart disease on competent medical evaluation. Moreover, these records indicate that all of the other claimed disabilities were first diagnosed many years after the Veteran's separation from active service. For example, records reflect he was hospitalized at a private facility in February 1974 for chest pain which was attributed to trauma to the anterior chest wall. He was again hospitalized at this same facility in April 1974 for pain in his left precordial (chest) area, which had been present since he was stomped in a fight. Following medical evaluation, to include chest X-ray and electrocardiogram, he was diagnosed with chest pain most likely pleuritic in origin. A December 1988 VA medical examination included diagnoses of degenerative arthritis of the cervical spine; status-post rheumatic heart disease; and peripheral vascular disease. However, the cardiovascular examination itself was normal; electrocardiogram was normal; and chest X-ray showed no heart abnormality. Records from the SSA reflect the Veteran was awarded disability benefits in 1989 from that agency due to arthritis, emphysema, and heart problems. Records pertaining to a January to February 1991 period of VA hospitalization include findings of CAD, but no diagnosis of rheumatic heart disease. An August 1991 statement from a private chiropractor reflects the Veteran was initially seen for complaints of neck and shoulder pain in January 1978, and that he was subsequently seen on multiple occasions for these same complaints through 1991. The post-service medical records indicate findings of hypertension and diabetes apparently beginning in 2001. However, these treatment records also suggest that these problems were due to tobacco use and/or obesity. Service connection was originally denied for rheumatic heart disease, in essence, because the record did not support a finding he had such a disability or heart problems or any other disability as a residual of the purported in-service rheumatic fever. Similarly, service connection was denied for multiple joint disease, diabetes, and hypertension, because the evidence did not support a finding that they originated during active service. The subsequent denials were on the basis that new and material evidence had not been received to reopen the prior claims. The evidence received since the last prior denial includes additional statements from the Veteran, a new lay statement from his spouse received in February 2009, as well as additional post- service medical records which cover a period through 2008. Initially, the Board notes that the additional evidence is "new" to the extent it was not previously on file. Nevertheless, this evidence appears to be cumulative and redundant in that it contains no findings and/or contentions that were not made at the time of the prior denial, nor does it relate to an unestablished fact necessary to substantiate the claim. For example, the Veteran continues to contend that these disabilities originated during service, and his spouse maintains he has had the same symptomatology since service. However, similar contentions were previously advanced in support of these claims, and no new details appear to be presented which were not known at the time of the prior denials. The Board further notes that the additional post-service medical records continue to show treatment for multiple joint disease/arthritis, diabetes mellitus, hypertension, as well as other heart-related problems. However, there is still nothing in these records which links the current disabilities to service, nor which indicates a diagnosis of rheumatic heart disease and/or any other current residual(s) of the purported in-service rheumatic fever. As noted above, similar evidence was of record at the time of the prior denials, and nothing in these records relates to an unestablished fact necessary to substantiate these claims. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical etiology, does not constitute new and material evidence). There being no other additional evidence obtained and/or submitted in support of the Veteran's application to reopen, the Board must find that even though the evidence received since the last prior denial of service connection for rheumatic heart disease, hypertension, diabetes, and multiple joint disease was not previously submitted to agency decisionmakers, it does not relate to an unestablished fact necessary to substantiate any of these claims, is cumulative and redundant of the evidence of record at the time of the last prior final denial, and does not raise a reasonable possibility of substantiating any of these claims. As such, new and material evidence has not been received in accord with 38 C.F.R. § 3.156(a). Inasmuch as new and material evidence has not been received to reopen these previously denied claims, the Board does not have jurisdiction to consider the claim or to order additional development. See Barnett v. Brown, 83 F.3d. 1380 (Fed. Cir. 1996). For these reasons, the benefit sought on appeal with respect to these appellate claims must be denied. Analysis - Service connection Regarding the Veteran's service connection claims, the Board observes that the heart and lungs are internal organs, not subject to lay observation. As such, competent medical testing is required for evaluation of such a disability. Therefore, competent medical evidence is required for resolution of this appeal, and it is not the type of case contemplated by the holding of Jandreau, supra. In this case, the Veteran was first diagnosed with CAD, leukoplakic lesion right eye, and a lung disorder many years after his separation from service. The Court has indicated that the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). The Board observes that the Veteran has not identified any specific in-service injury or disease as the basis for his leukoplakic lesion of the right eye. As noted above, new and material evidence has not been received to reopen his claim of rheumatic heart disease, which includes any heart disorder claimed as due to his purported in-service rheumatic heart fever and complaints of chest pain therein. Granted, the record reflects he has intimated various problems were due to in-service herbicide and/or asbestos exposure. However, as detailed below, the record does not support such a finding. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, 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 service. 38 U.S.C.A. § 1116(f). Moreover, it is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii). These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, 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. 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified 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 the following conditions: Hepatobiliary cancers, nasopharyngeal cancer, bone and joint cancer, breast cancer, cancers of the female reproductive system, urinary bladder cancer, renal cancer, testicular cancer, leukemia (other than CLL), abnormal sperm parameters and infertility, Parkinson's disease and parkinsonism, amyotrophic lateral sclerosis (ALS), chronic persistent peripheral neuropathy, lipid and lipoprotein disorders, gastrointestinal and digestive disease, immune system disorders, circulatory disorders, respiratory disorders (other than certain respiratory cancers), skin cancer, cognitive and neuropsychiatric effects, gastrointestinal tract tumors, brain tumors, endometriosis, adverse effects on thyroid homeostasis, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009). In this case, however, the only foreign service documented in the Veteran's service personnel records is Korea. In reference to exposure to herbicides outside of Vietnam, VA has information regarding the use of Agent Orange in Korea along the demilitarized zone (DMZ). The Department of Defense (DOD) has identified specific units which were assigned or rotated to areas near the DMZ where herbicides were used between April 1968 and July 1969. Field artillery, signal and engineer troops also were supplied as support personnel to various elements of these Infantry Divisions during the time of the confirmed use of Agent Orange. If it is determined that a veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. See VA Adjudication Procedure Manual, M21-1 MR, Part VI, Chapter 2, Section B. If a veteran instead either belonged to a different unit located in Korea during this time period, or served in one of the units identified by DOD between September 1, 1967 and August 31, 1971, but not during 1968 or 1969, then herbicide exposure will represent a factual determination to be established on a case-by-case basis. Id. In this case, the Veteran's entire period of active service occurred prior to the aforementioned dates of such possible herbicide exposure in Korea. There is also no indication of any other evidence of record which would support a finding of in- service herbicide exposure. Consequently, these provisions are not for consideration in the instant case. Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (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 actual direct causation. 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. Brock v. Brown, 10 Vet. App. 155 (1997). The Veteran, however, has not submitted any objective evidence to support a finding that he was exposed to herbicides, nor that his disabilities are due to herbicide exposure, other than his unsubstantiated lay statements. For claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos- related diseases. This circular, DVB Circular 21-88- 8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos- related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21- 1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VAOPGCPREC 4-00. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Noted is that the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. In this case, the Board notes that the record does not support a finding of in-service asbestos exposure. The Veteran's primary military occupational specialty, as noted on his DD Form 214, was that of a light truck driver, and the record does not otherwise reflect he performed duties associated with asbestos exposure as enumerated by the applicable M21-1 provisions. Moreover, there does not appear to be medical findings consistent with asbestos- exposure as described by the applicable M21-1 provisions either. Consequently, there does not appear to be any basis to associate any current disability with such purported exposure. The Board also wishes to reiterate that the Veteran has not provided any specific contentions regarding the leukoplakic lesion right eye, nor is there any indication that his CAD or lung disorder are attributable to confirmed event(s) of active service as the Board has determined consideration of herbicide and/or asbestos exposure is not warranted. Simply put, there is no relevant complaint or clinical finding for a clinician to link the claimed disabilities to the Veteran's military service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history, and unsupported by clinical findings, is not probative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Black v. Brown, 5 Vet. App. 177, 180 (1995) (A medical opinion is inadequate when unsupported by clinical evidence). Consequently, the Board must conclude that no competent medical examination and/or opinion is warranted in this case as any medical opinion relating these disabilities to service would not be supported by what actually occurred in service. The Board further wishes to reiterate that the competent medical evidence suggests the Veteran's heart and lung problems are associated with his tobacco use. For claims received by VA after June 9, 1998 (as is the case here), a disability will not be considered service connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. See 38 U.S.C.A. § 1103; 38 C.F.R. § 3.300. Finally, a thorough review of the competent medical evidence of record does not reflect the Veteran has ever been diagnosed with tinnitus. Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992). In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders. The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme. Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service- related diseases and injuries to cases where the underlying in- service incident has resulted in a disability). Simply put, in the absence of proof of present disability there can be no valid claim. For the reasons stated above, the Board concludes that the preponderance of the evidence is against the Veteran's service connection claims. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefits sought on appeal with respect to these claims must be denied. ORDER New and material evidence not having been received to reopen a claim of entitlement to service connection for residuals of rheumatic heart disease, the benefit sought on appeal is denied. New and material evidence not having been received to reopen a claim of entitlement to service connection for multiple joint disease of the neck, back and feet, the benefit sought on appeal is denied. New and material evidence not having been received to reopen a claim of entitlement to service connection for diabetes, the benefit sought on appeal is denied. New and material evidence not having been received to reopen a claim of entitlement to service connection for hypertension, the benefit sought on appeal is denied. Entitlement to service connection for CAD is denied. Entitlement to service connection for leukoplakic lesion right eye (claimed as growth on right eye) is denied. Entitlement to service connection for a lung disorder is denied. Entitlement to service connection for tinnitus is denied. ______________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs