Citation Nr: 1100907 Decision Date: 01/10/11 Archive Date: 01/20/11 DOCKET NO. 08-08 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for prostate cancer, to include as secondary to Agent Orange exposure. 3. Entitlement to service connection for chronic anemia, to include as secondary to prostate cancer and Agent Orange exposure. 4. Entitlement to service connection for diabetes mellitus, to include as secondary to Agent Orange exposure. 5. Entitlement to service connection for skin cancer. 6. Entitlement to service connection for a lumbar spine disability. 7. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), claimed as hard breathing, to include as secondary to asbestos exposure. 8. Entitlement to service connection for residuals of a right leg burn. 9. Entitlement to service connection for asbestos exposure. 10. Entitlement to service connection for radiation exposure. ATTORNEY FOR THE BOARD E.M. Evans, Law Clerk INTRODUCTION The Veteran served on active duty from February 1954 to December 1957 and from November 1959 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March and May 2006 rating decisions of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for COPD, to include as secondary to asbestos 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. On April 25, 2006, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal with regard to hypertension was requested. The Veteran not was exposed to an herbicide agent, such as Agent Orange, in service. 2. There is no competent evidence of record showing a causal relationship between the Veteran's prostate cancer and any incident of service. 3. There is no competent evidence of record showing a causal relationship between the Veteran's chronic anemia and any incident of service. 4. There is no competent evidence of record showing a causal relationship between the Veteran's diabetes mellitus and any incident of service. 5. There is no competent evidence of record showing a causal relationship between the Veteran's skin cancer and any incident of service; skin cancer was first shown years after service. 6. There is no competent evidence of record showing a causal relationship between the Veteran's lumbar spine disability and any incident of service; a lumbar spine disability was first shown years after service. 7. There is no credible evidence of a right leg burn in service or any related in-service incident. 8. Asbestos exposure is not a disability for which service connection can be granted. The Veteran's claim for COPD related to asbestos exposure is addressed in the remand portion of this decision. 9. There is no credible evidence establishing any claimed disability due to radiation exposure, and radiation exposure is not a disability. CONCLUSION OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran (or his or her representative) concerning the issue of entitlement to service connection for hypertension have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.202, 20.204 (2010). 2. Prostate cancer is not due to disease or injury that was incurred in or aggravated by active service nor may it be presumed to have been incurred in or caused by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a) (2010). 3. Chronic anemia is not due to disease or injury that was incurred in or aggravated by active service nor may it be presumed to have been incurred in or caused by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a). 4. Diabetes mellitus is not due to disease or injury that was incurred in or aggravated by active service nor may it be presumed to have been incurred in or caused by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309(a). 5. Skin cancer was not incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. A lumbar spine condition was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. Residuals of a right leg burn were not incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for asbestos exposure are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.311. 9. The criteria for service connection for radiation exposure are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309(d), 3.311. REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawal of Entitlement to Service Connection for Hypertension Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202, 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, the record indicates that in an April 2006 correspondence, the Veteran withdrew his appeal as to the claim for entitlement to service connection for hypertension. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the claim, and it is dismissed. Duty to Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in December 2004 and March 2005, prior to the date of the issuance of the appealed March and May 2006 rating decisions. The Board further notes that, in April 2008, the Veteran was notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A portion of the Veteran's service treatment records are not available and attempts to secure them have proved futile. 38 C.F.R. § 3.159. The RO advised the Veteran of the missing service treatment records in a November 2007 letter. He has been advised to submit documents that relate his disabilities to service. VA has a heightened duty to assist the Veteran in developing his claim since the records may have been lost or destroyed by fire. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for 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 appellant. See Russo v. Brown, 9 Vet.. App. 46, 51 (1996). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. VA did not provide the Veteran with examinations in connection with his claims, and the Board finds that examinations are not necessary to decide the merits of these claims. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4). Admittedly, the threshold for the duty to provide an examination is rather low. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Here, however, the evidence of record is sufficient to decide the claims of entitlement to service connection. The Veteran has submitted private treatment records. Unfortunately, these do not indicate that any claimed disability may be related to service. Indeed, there is no competent evidence of any pertinent disorder until decades post-service. There is no competent evidence linking any claimed disorder to service. Thus, there is no requirement that VA provide a compensation examination or obtain an opinion. The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, private medical records, and VA records. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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). In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in- service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection will also be presumed for certain chronic diseases, if manifest to a compensable degree within one year after discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that he is entitled to service connection for prostate cancer and diabetes mellitus secondary to Agent Orange exposure; chronic anemia secondary to prostate cancer; hypertension, a lumbar spine disorder, skin cancer, residuals of a right leg burn, asbestos exposure, and radiation exposure. Specifically, the Veteran claims that he was exposed to Agent Orange while working on the flight deck on the Navy ships, stationed in the waters outside Vietnam, which he believes is the cause of his diabetes mellitus, prostate cancer, and related chronic anemia. Additionally, the Veteran claims that he was exposed to radiation due to daily use of dials and gauges on board his naval vessels. He also claims to have been exposed to asbestos frequently due to the naval vessels he served on. Finally, the Veteran claims to have suffered a fall in service and injured his lower back. I. Diabetes Mellitus, Skin Cancer, Prostate Cancer, and Anemia The Veteran contends that he developed diabetes mellitus, skin cancer, prostate cancer, and chronic anemia secondary to prostate cancer, due to exposure to Agent Orange. The Veteran claims that he came into contact with Agent Orange while handling planes returning from low flying mission over the jungles of Vietnam. The Veteran stated that these planes were covered with Agent Orange and as a result he was constantly exposed during his time serving on naval vessels in the waters outside of Vietnam. The Board notes that there is a presumption of exposure to herbicides if claimant served in the Republic of Vietnam, even if there is no record of treatment in service. 38 U.S.C.A. §§ 1113, 1116; 38 C.F.R. § 3.307. However, presumption exists only for diseases listed in 38 C.F.R. § 3.309(e). The following diseases are associated with herbicide exposure for the purposes of the presumption: chloracne or other acneform disease consistent with chloracne, 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, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Notwithstanding the presumption, the Veteran still can establish service connection for a disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). But see Polovick v. Shinseki, 23 Vet. App. 48 (2009). "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. 38 C.F.R. § 3.307(a)(6)(iii). An opinion of the General Counsel for VA held that service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A) (West 2002). The Federal Circuit Court recently clarified that service in the Republic of Vietnam is interpreted as requiring service on the landmass of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). Service on inland waterways (also called brown water service) is also considered to be sufficient to invoke the presumption. There is no evidence that the Veteran's diabetes mellitus, skin cancer, prostate cancer, or chronic anemia are related to service. Initially, it is not contended or otherwise shown that the Veteran was ever stationed in Vietnam during his active service, or that he set foot on the ground in Vietnam. While there is evidence that the Veteran served aboard a naval vessel there is no evidence that his service included any visitation to Vietnam. As such, the presumption of service connection associated with herbicide exposure in Vietnam is not applicable in this case. Moreover, the record does not establish that the Veteran was exposed to an herbicide agent, such as Agent Orange, in service. While he contends that he was exposed in service, there is nothing to confirm this, despite attempts made to do so. Thus, in this case, for the reasons set forth above, the presumption associated with exposure to herbicides does not apply. The Veteran's claims will therefore be addressed on a direct basis. Combee v. Brown, 374 F.3d 1039, 1042 (Fed. Cir. 1994). If diabetes mellitus and anemia become manifest to a degree of 10 percent within one year of separation from active service, then they are presumed to have been incurred during active service, even though there is no evidence during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There are no records showing diabetes mellitus or anemia within one year of separation from service. In the absence of a presumption, in order to establish direct service connection, the Veteran must provide evidence of a current disability, an in-service injury or disease, and a nexus between his disability and the in-service injury or disease. The Board notes that the only service treatment records (STRs) available for review are dated from May 1969 to April 1975. There are no STRs referring to any complaints, findings, or treatments for diabetes mellitus, skin cancer, prostate cancer, or chronic anemia at any point during the Veteran's period of active service. The post service treatment records document a diagnosis of non- insulin dependent diabetes requiring medication in 1999, a diagnosis for multiple melanomas in August 2002, a diagnosis of prostate cancer in May 1995, and the first evidence of record of chronic anemia is from July 2004. The Board notes there is no medical evidence linking the Veteran's current diagnoses of diabetes, skin cancer, prostate cancer, or anemia to any event or incident of his period of active service. The submitted evidence only serves to establish that the Veteran began to experience these conditions at the earliest in 1995 and currently experiences them. The absence of clinical treatment records for many years after active duty is probative evidence against continuity of symptoms since service. Mense v. Derwinski, 1 Vet. App. 354 (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). The passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). A veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). However, in this case, there is no medical evidence of a nexus between the Veteran's diabetes, skin cancer, prostate cancer, or chronic anemia disabilities and his military service. Accordingly, the Board finds that service connection for diabetes, skin cancer, prostate cancer, and chronic anemia must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). II. Lumbar Spine Condition and Residuals of Right Leg Burn. The Veteran contends that his lumbar spine disability and his right leg scars are due to his active service. The Veteran asserts that he injured his back due to a fall in service and that he burned his right leg while pushing planes overboard in a plane crash aboard the aircraft carrier he was stationed on. As stated above the Veteran's full service treatment records are not available for review. However, the records available include an April 1975 examination which notes that the Veteran's spine is normal and that there are no scars, or marks on his legs. Post service treatment records show that the Veteran currently has a lumbar compression fracture, and a scar on his right leg. The earliest evidence of the lumbar spine disability is a June 2004 report. A November 2004 private treatment report notes a history of a right leg burn. While the record contains evidence of current lumbar spine pathology and a scar on the Veteran's right leg, there is no evidence of either of these disabilities during service or immediately thereafter. The Veteran was informed in a November 2007 correspondence of the unavailability of a portion of his service records and asked to submit any records he had from service or just after service of any of his claimed disabilities. The Veteran failed to submit any service records he possessed or any records within one year of separation of any of his claimed disabilities. The Board is of the opinion that the contemporaneous separation examination, which shows a normal spine and no scar on the leg, have much greater probative value than recollections made many years later in support of a claim for monetary benefits. Moreover, as stated above, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer, 210 F.3d at 1353 (Fed. Cir. 2000). Therefore as there is no competent, credible evidence of a nexus between the Veteran's current disabilities and his military service, entitlement to service connection for a lumbar spine condition and residuals of a right leg burn are denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claims, and they must be denied. III. Asbestos Exposure The Veteran asserts that he was exposed to asbestos while serving on various naval vessels during his time of active duty. The available service treatment records associated with the claims file are negative for any diagnosis of or treatment for a respiratory disorder. No reference to asbestos exposure is noted in the Veteran's service personnel records. Still, in light of the Veteran's naval service and the dates and locations of his service on aircraft carriers, the Board concedes that it possible that he was exposed to asbestos in service. Mere exposure, however, to a potentially harmful agent is insufficient to be eligible for VA disability benefits. The medical evidence must show not only a currently diagnosed disability, but also a nexus, that is, a causal connection, between this current disability and the exposure to asbestos and in service. Hickson v. West, 12 Vet. App. 247 (1999). Accordingly as the Veteran has not claimed a specific disability due to asbestos exposure but exposure itself, his claim for entitlement to service connection for asbestos exposure must be denied. IV. Radiation Exposure The Veteran argues that he was exposed to radiation during service from the ship's gauges. Service connection for disability that is claimed to be attributable to exposure to ionizing radiation during service can be demonstrated by three different methods. Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in radiation-exposed veterans under 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Under Combee, VA must not only determine whether a veteran had a disability recognized by VA as being etiologically related to exposure to ionizing radiation, but must also determine whether the disability was otherwise the result of active service. In other words, the fact that the requirements of a presumptive regulation are not met does not in and of itself preclude a claimant from establishing service connection by way of proof of actual direct causation. 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 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 in Japan that resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans who were in the occupation forces of Hiroshima or Nagasaki during the period August 6, 1945, to July 1, 1946; or certain service on the grounds of gaseous diffusion plants located in Paducah, Kentucky, Portsmouth, Ohio, and Oak Ridge, Tennessee; or, in certain circumstances, service on Amchitka Island, Alaska. See 38 C.F.R. § 3.309(d)(ii). Diseases presumptively service connected for radiation- exposed veterans under the provisions of 38 U.S.C.A. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: 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 gallbladder, primary liver cancer (except cirrhosis or hepatitis B as indicated), cancer of the salivary glands, 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 U.S.C.A. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a "radiation-exposed veteran" under 38 C.F.R. § 3.303(d)(3) and/or does not suffer from one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. Under 38 C.F.R. § 3.311, "radiogenic disease" means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) thyroid cancer; (iii) breast cancer; (iv) lung cancer; (v) bone cancer; (vi) liver cancer; (vii) skin cancer; (viii) esophageal cancer; (ix) stomach cancer; (x) colon cancer; (xi) pancreatic cancer; (xii) kidney cancer; (xiii) urinary bladder cancer; (xiv) salivary gland cancer; (xv) multiple myeloma; (xvi) posterior subcapsular cataracts; (xvii) nonmalignant thyroid nodular disease; (xviii) ovarian cancer; (xix) parathyroid adenoma; (xx) tumors of the brain and central nervous system; (xxi) cancer of the rectum; (xxii) lymphomas other than Hodgkin's disease; (xxiii) prostate cancer; and (xxiv) any other cancer. 38 C.F.R. § 3.311(b)(2). Section 3.311(b)(5) requires that prostate cancer and skin cancer become manifest five years or more after exposure. 38 C.F.R. § 3.311(b)(2). When a claim is based on a disease other than one of those listed in 38 C.F.R. § 3.311(b)(2), VA shall nevertheless consider the claim under the provisions of 38 C.F.R. § 3.311 provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. 38 C.F.R. § 3.311(b)(4). As an initial matter, the Board notes that the Veteran did not participate in a radiation-risk activity during service and, therefore, is not a "radiation-exposed veteran" as defined by 38 C.F.R. § 3.309(d)(3). As the Veteran's service did not involve the participation in a radiation-risk activity, he does not meet the criteria as a radiation-exposed veteran. Furthermore, the Veteran is not shown to have one of the presumptive diseases under the provisions of 38 C.F.R. § 3.309(d)(3). In fact, the Veteran seeks to establish service connection for mere exposure and as stated above mere exposure is not a disability for which service connection can be granted. Accordingly, the claim for entitlement to service connection for radiation exposure is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claims, and they must be denied. ORDER The appeal concerning the claim for entitlement to service connection for hypertension is dismissed. Service connection for prostate cancer, to include as secondary to Agent Orange exposure, is denied. Service connection for chronic anemia, to include as secondary to prostate cancer and Agent Orange exposure, is denied. Service connection for diabetes mellitus, to include as secondary to Agent Orange exposure is denied. Service connection for skin cancer is denied. Service connection for a lumbar spine disability is denied. Service connection for residuals of a right leg burn is denied. Service connection for asbestos exposure is denied. Service connection for radiation exposure is denied. REMAND The Veteran asserts he was exposed to asbestos while serving on various naval vessels during his time of active duty. Service treatment records (STRs) associated with the claims file are negative for any diagnosis of or treatment for a respiratory disorder, to include COPD. No references to asbestos exposure were contained in these records. However, in light of the Veteran's naval service, his MOS of steam catapult man and fuel system maintenance man, and the dates and locations of service contained therein, the Board concedes that the Veteran was exposed to asbestos in service. Mere exposure, however, to a potentially harmful agent is insufficient to be eligible for VA disability benefits. Hence, the question is whether any current respiratory disorder is due to service. The medical evidence must show not only a currently diagnosed disability, but also a nexus, that is, a causal connection, between this current disability and the exposure to asbestos in service. Hickson v. West, 12 Vet. App. 247 (1999). In this regard, the Veteran has provided private medical evidence containing a diagnosis of COPD. The Board finds that further development is required in order to adjudicate the claim of entitlement to service connection for COPD, claimed as hard breathing, secondary to asbestos exposure, considering the Veteran's conceded in-service asbestos exposure and his subsequent development of COPD. Therefore, a VA examination or opinion is necessary if the evidence of record indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and the record does not contain sufficient medical evidence for VA to make a decision on the claim. McClendon. For these issues, the low threshold of McClendon has been crossed and VA examinations must be afforded in order to adequately adjudicate the merits of these claims. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The AMC/RO should contact the Veteran and his representative and determine whether there are additional pertinent treatment records pertaining to care for his COPD, either VA or non-VA, which are not yet associated with the claims file. If there are, the AMC/RO must take appropriate steps to obtain them and associate them with the claims file. 2. Thereafter, the RO/AMC should schedule the Veteran for a VA examination to be conducted by a physician to determine the nature and etiology of his COPD. The claims folder must be provided to the examiner. The physician must state whether or not the current COPD is as likely as not related to the Veteran's in-service asbestos exposure. In preparing any opinion addressing whether there is a nexus between the disorder and service the examining physician must note the following terms: * "It is due to service" means 100 percent assurance of relationship. * "It is at least as likely as not due to service" means 50 percent or more. * "It is not at least as likely as not due to service" means less than a 50 percent chance. * "It is not due to service" means 100 percent assurance of non relationship. If the examining physician is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the examining physician must specifically explain why the causation of any diagnosed disorder is unknowable. A complete written rationale for any opinion offered must be expressly stated and fully explained. If the examiner cannot offer an opinion without resort to speculation, he or she must so state and explain why speculation is required. 3. The RO is to advise the Veteran that it is his responsibility to report for an ordered VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). 4. Thereafter, the RO should readjudicate the claims. If any claim remains denied, a supplemental statement of the case must be issued, and the Veteran offered 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. 2010). ______________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs