Citation Nr: 1304672 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-31 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for the service-connected sinus disability. 2. Entitlement to an increased (compensable) disability evaluation for the service-connected hemorrhoids disability. 3. Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for testicular cancer, claimed as due to herbicide exposure. 4. Whether there is new and material evidence sufficient to reopen the claim of entitlement to service connection for prostate cancer, claimed as due to herbicide exposure. 5. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for Hepatitis C infection claimed as the result of VA medical treatment. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active service from July 1973 to September 1974. This case comes before the Board of Veterans' Appeals (Board) from appeal from a February 2010 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO. In addition to the paper claims files, there is an electronic file (Virtual VA) associated with the appellant's various claims. Virtual VA does not currently contain any evidence pertinent to the appellant's claims. Service connection for testicular cancer was originally denied in a June 1989 rating decision. The appellant was notified of the denial the next month, but he did not appeal. The June 1989 rating decision, therefore, represents the last final action on the merits of the service connection claim for testicular cancer (non-seminomatous teratocarcinoma of the left testicle). Glynn v. Brown, 6 Vet. App. 523 (1994). The RO determined that reopening of the testicular cancer claim was not warranted in an October 2005 rating decision; this was confirmed in a November 2005 rating decision. The appellant was notified of the denial the next month, but he did not appeal. The November 2005 rating decision therefore represents the last final decision on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Thus, the Board must consider whether any of the evidence submitted since the November 2005 rating decision constitutes new and material evidence. Service connection for prostate cancer was originally denied in an October 2005 rating decision. The appellant was notified of the denial the next month, but he did not appeal. The October 2005 rating decision, therefore, represents the last final action on the merits of the service connection claim for prostate cancer. Glynn v. Brown, 6 Vet. App. 523 (1994). The RO confirmed the denial in a November 2005 rating decision. The appellant was notified of the denial the next month, but he did not appeal. The November 2005 rating decision therefore represents the last final decision on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Thus, the Board must consider whether any of the evidence submitted since the November 2005 rating decision constitutes new and material evidence. As reflected in the February 2010 rating decision and the July 2010 Statement of the Case (SOC), the RO addressed the testicular cancer and prostate cancer issues on the merits after a de novo review of each claim. However, before reaching the merits of these two claims for service connection, the Board must first rule on the matter of the reopening of each claim. That is, the Board has a jurisdictional responsibility to consider whether it is proper for each claim to be reopened. See Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The new and material evidence issues on appeal are therefore as listed on the first page of the present decision. The issue of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for Hepatitis C infection claimed as the result of VA medical treatment is addressed in the REMAND portion of the decision below and that issue is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Throughout the appeal period, the appellant's service-connected sinus disability has been manifested by symptoms which do not demonstrate three or more incapacitating episodes per year requiring prolonged antibiotic treatment; more than six non-incapacitating episodes per year have not been demonstrated. 2. The appellant has not had radical surgery with chronic osteomyelitis, nor has he had repeated surgeries. 3. At his September 2009 VA medical examination, the appellant refused to undergo a rectal examination for evaluation of his hemorrhoids. 4. Throughout the appeal period, the appellant's hemorrhoids have not resulted in large or thrombotic irreducible hemorrhoids manifested by excessive redundant tissue evidencing frequent recurrences; his hemorrhoids have not resulted in the development of anemia or fissures at any point during the course of this appeal. 5. The appellant did not have service in the Republic of Vietnam during the Vietnam era, and exposure to Agent Orange or other herbicidal agents is not presumed. 6. The appellant served in Guam from December 31, 1973 to approximately May 6, 1974. 7. The appellant's claim of entitlement to service connection for testicular cancer was denied in a June 1989 rating action and the appellant did not appeal that rating decision. 8. Reopening of the appellant's claim for testicular cancer was denied in a November 2005 rating decision and the appellant did not appeal that decision. 9. The evidence received since the final unfavorable rating decision of November 2005, when considered with previous evidence, does not relate to an unestablished fact necessary to substantiate the appellant's claim for service connection for a testicular cancer, including as due to herbicide exposure, and does not raise a reasonable possibility of substantiating that claim. 10. The appellant's claim of entitlement to service connection for prostate cancer was denied in a November 2005 rating action and the appellant did not appeal that rating decision. 11. The evidence received since the final unfavorable rating decision of November 2005, when considered with previous evidence, relates to an unestablished fact necessary to substantiate the appellant's prostate cancer claim and raises a reasonable possibility of substantiating the claim for service connection for prostate cancer. 12. The appellant's service medical records contain no findings or diagnoses of any chronic prostate disorder. 13. The appellant was not diagnosed with prostate cancer prior to 2005. 14. There is no competent medical evidence of any nexus between the appellant's claimed prostate cancer and any aspect of his military service. 15. The preponderance of the competent and probative evidence is against a finding that the appellant's prostate cancer is due to any incident or event in military service, or that any such disorder was manifested to a degree of ten percent or more within one year after service separation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent have not been met for the appellant's sinus disability at any time. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.96, 4.97, Diagnostic Code 6513 (2012). 2. The criteria for an evaluation in excess of zero percent have not been met for the appellant's hemorrhoid disability at any time. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7336 (2012). 3. The November 2005 rating decision that denied the reopening of the appellant's claim of entitlement to service connection for testicular cancer is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (2012). 4. The criteria for reopening the claim of entitlement to service connection for testicular cancer, to include as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 5. The November 2005 rating decision that denied the appellant's claim of entitlement to service connection for prostate cancer is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (2012). 6. The criteria for reopening the claim of entitlement to service connection for prostate cancer have been met. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 7. The criteria for service connection for prostate cancer, to include as presumptively due to Agent Orange exposure, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the United States Court of Appeals for Veterans Claims (Court), in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. In a claim for increase, the VA notice requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). See Dingess v. Nicholson, supra. In July 2009, VA sent a letter which notified the appellant of the general formula for rating the sinus and hemorrhoid disabilities, including the text of the pertinent diagnostic codes. In July 2009, prior to the promulgation of the February 2010 rating action, VA sent the appellant a letter informing him of the types of evidence needed to substantiate his increased rating claims and its duty to assist him in substantiating his increased rating claims. The letters informed him that VA would assist him in obtaining evidence necessary to support his claims, such as medical records, records from other Federal agencies, etc. He was advised, as per 38 C.F.R. § 3.159(b)(1), that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claims. In the context of a claim to reopen a previously denied claim, VA is required to "look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial." Kent v. Nicholson, 20 Vet. App. 1 (2006). In connection with the prostate cancer claim, the Board is granting in full the benefits sought on appeal (reopening the claim). Accordingly, any error committed with respect to either the duty to notify was harmless as to the new and material evidence aspect of the prostate cancer claim and will not be further discussed. In addition, the appellant was provided with notice as to the medical evidence needed to service connect a condition in the July 2009 VA letter, as well as the assistance VA would provide. As for the testicular cancer claim, the appellant received appropriate notification prior to the initial unfavorable agency decision through the July 2009 notice letter which correctly described the bases for the prior final denial and the evidence that would be necessary to reopen the claim. Thus, the appellant has been provided adequate notice with regard to the increased rating claims, the claims to reopen and the service connection claim. With respect to the Dingess requirements, the appellant was provided with the relevant information in July 2009 VA letter. Moreover, the record shows that the appellant was represented by an attorney throughout the adjudication of his claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). The appellant has been afforded a meaningful opportunity to participate effectively in the processing of each one of his claims and given ample time to respond; he was not prejudiced by any notice error. The Board finds that the information provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the February 2010 rating decision and the July 2010 Statement of the Case explained the basis for the RO's actions, and provided him with opportunities to submit more evidence. It appears that all obtainable evidence identified by the appellant relative to his various claims has been obtained and associated with the claims file. In addition, neither he nor his attorney has identified any other available pertinent evidence relating to any one of his claims, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the appellant has been provided with every opportunity to submit evidence and argument in support of his various claims, and to respond to VA notices. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Here, relevant service treatment records have been associated with the claims file. In addition, the appellant's service personnel records have been included in the evidence of record. VA medical treatment records have also been associated with the claims file. The RO undertook a special consideration of herbicide exposure in Guam on a factual basis. See VA's Adjudication Procedures Manual, M21-1MR, Part IV.ii.2.C.10.oo. The appellant also was afforded VA medical examinations in September 2009. A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The September 2009 VA examinations conducted in connection with the claims for increase were conducted by a medical professional, and the associated reports reflect review of the appellant's prior medical history and medical records. The examinations included a report of the symptoms for the claimed sinus and hemorrhoid disabilities and demonstrated objective evaluations. However, the appellant refused to undergo a rectal examination for hemorrhoids. See 38 C.F.R. § 3.655. The Board finds that the examination reports are sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings. In addition, it is not shown that the examination reports were in any way incorrectly prepared or that the VA examiner failed to address the clinical significance of the appellant's claimed conditions. Further, the VA examination reports addressed the applicable rating criteria. As a result, the Board finds that additional development by way of additional examination would be redundant and unnecessary. See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, supra. Therefore, the Board concludes that the appellant was afforded adequate examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no duty to obtain a medical opinion in connection with the testicular cancer claim as new and material evidence has not been submitted. 38 C.F.R. § 3.159(c)(4). A medical opinion was not obtained in connection with the reopened claim of service connection for prostate cancer, but the Board concludes that no opinion is necessary. The Veteran does not claim, nor does the evidence show, that he was diagnosed with or treated for prostate cancer while in service. Rather, his claim is premised on in-service exposure to herbicides while stationed in Guam. For reasons explained thoroughly below, the Board finds the preponderance of the evidence is against a finding of in-service exposure to herbicides. For reasons explained below, exposure may also not be presumed under the circumstances here. Accordingly, whether a medical professional could associate the Veteran's cancer to herbicide exposure would have no bearing on the outcome of this case. There simply is no "in-service event, injury or disease to support incurrence or aggravation." McLendon v. Nicholson, 20 Vet. App. 79 (2006). There is also no indication that the Veteran's disorder may be related to any in-service event. For these reasons, the Board concludes the duty to provide a VA examination has not been triggered and would serve no useful purpose here since it could not provide evidence of a past event. Furthermore, the appellant was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159. He did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained. He had previously been given more than one year in which to submit evidence after the RO gave him notification of his rights under the pertinent statute and regulations. The appellant was provided with notice as to the medical evidence needed to obtain an increased evaluation for sinus and hemorrhoid disabilities. He was also provided notice as to the evidence needed to reopen a claim and to service connect a condition, as well as the assistance VA would provide. Therefore, there is no duty to assist that was unmet and the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the appellant's claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All relevant facts with respect to the claims addressed in the decision below have been properly developed. Under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). The Merits of the Claims In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Increased rating claims The law provides that disability evaluations are determined by the application of a schedule of ratings that is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether they were raised by the appellant or not, as well as the entire history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. While a veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A. Sinus disability The appellant contends that his sinus disability is more severely disabling than the current evaluation reflects. He maintains that his sinus disability warrants an evaluation in excess of the currently assigned 10 percent rating because he gets antibiotics for sinus infections at least four to six times per year. The appellant's service-connected chronic sinus disability has been evaluated under 38 C.F.R. § 4.97, Diagnostic Code 6513 of the VA Rating Schedule, chronic maxillary sinusitis. According to the General Rating Formula for Sinusitis, a 30 percent evaluation is warranted for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is warranted following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A Note which follows these provisions indicates that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Diagnostic Codes 6510-6514. The appellant underwent a VA medical examination in September 2009; the examiner reviewed the appellant's claims file and medical records. The appellant complained of sinus pain and tenderness. He said that he had sinus infections that occurred three to four times per year accompanied by a foul yellow/green drainage and postnasal drip. The appellant also reported that he had had about eight courses of antibiotics for 30 days during the previous two years. He said that he had difficulty breathing through his nose on any given day due to the sinus disability. The appellant also reported that he had not been seen by an ears/nose/throat specialist in the last five years. There was no history of trauma, hospitalization or surgery, neoplasm, nasal allergy or osteomyelitis. There was no history of incapacitating episodes. There was a history of non-incapacitating episodes involving complaints of headache, purulent drainage and sinus pain occurring four times per year. The duration of these episodes was at least 14 days. On physical examination, the appellant had tenderness of the frontal and maxillary sinuses. There were no rhinitis symptoms. There was a 20 percent obstruction of the left nasal passage. There was a deviated septum that was not due to trauma. No nasal polyps were present. There was no tissue loss, scarring or deformity of the nose. There was no evidence of active disease. Radiographic examination by computerized tomography (CT) scanning in January 2008 had revealed chronic sinusitis involving the ethmoids and the right maxillary sinus. The examiner noted that the sinus disability had no effects on the appellant's occupational or daily activities. Review of the appellant's VA medical treatment records does reflect treatment for his sinus disability at VA facilities. In 2007, he had antibiotic treatment for a sinus infection on two occasions. In 2008, he was prescribed antibiotics for a sinus infection in January, March and November. In May 2009, a primary care assessment note included the observation that the appellant's chronic sinus congestion was stable. On physical examination, his pharynx was clear. In July 2009, the appellant reported having a cough and sinus drainage, but he said that he was "not infected." In September he called in to a VA clinic and requested antibiotics for a sinus infection; he complained of a headache, but denied severe headaches. In January 2010, the appellant again requested antibiotics for a sinus infection; he complained of yellow/green sputum and a slight headache. A March 2010 pulmonary clinic note indicates that he reported having chronic sinus infections and constant sinus drainage. In June 2010, he reported by telephone that he had another sinus infection and he asked that antibiotics be mailed to him. Thus, the evidence of record reveals that the appellant does not have a history of three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment nor does he have a history of more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. In addition, the appellant has never undergone surgery that was followed by chronic osteomyelitis. Nor does the medical evidence of record indicate that the appellant has suffered from near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. While the medical evidence of record reflects that the appellant has provided information concerning headaches on occasion as well as a nasal discharge, crusting has not been clinically noted. Furthermore, the medical evidence of record does not reflect repeated surgeries - in fact, no surgery is of record - and there is no clinical evidence of purulent discharge or crusting after repeated surgeries. Therefore the evidence of record does not support a 30 percent rating or a 50 percent rating under the current rating criteria. Thus it follows that evaluation under the criteria for sinusitis would not result in an increased rating in this case. The Board has also considered the regulatory provisions relating to rhinitis wherein allergic or vasomotor rhinitis warrants a 30 percent rating when there are nasal polyps; 30 percent is the highest rating available under this code. 38 C.F.R. § 4.79, Diagnostic Code 6522. There were no symptoms of rhinitis during the September 2009 VA examination and there is no current evidence of the presence of polyps in the appellant's nose. The evidence thus suggests that the appellant likely experiences continued problems with symptoms that appear characteristic of the 10 percent criteria, namely two to six non-incapacitating episodes per year of sinusitis. In reaching this determination, the Board has given due consideration to the doctrine of resolving all doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b), which requires that if the evidence preponderates in favor of the Veteran or is in relative equipoise, the claim must be allowed and that the claim may be denied only if the preponderance of the evidence is against the claim. In light of the evidence of record and the above legal criteria, the Board finds that the appellant is not entitled to an evaluation in excess of a 10 percent, because the evidence of record does not demonstrate that the appellant experiences three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. Evaluation under the criteria for incapacitating or non-incapacitating episodes of sinusitis would not result in a rating in excess of 10 percent in the instant case. Thus, more than the currently assigned 10 percent evaluation is not warranted under the applicable rating criteria. Hence, the evidence supports no more than a schedular rating of 10 percent for the appellant's service-connected sinus disability. The Rating Schedule does not provide a basis for an increased evaluation for that disability, given the physical findings in this case. The preponderance of the evidence is against the claim for a rating in excess of 10 percent for the sinusitis disability. B. Hemorrhoid disability The appellant contends that the severity of his hemorrhoid disability is not reflected in the currently assigned evaluation of zero percent. He argues that he is entitled to a compensable evaluation for his service-connected hemorrhoid disability because his hemorrhoids are getting worse such that he needs another hemorrhoidectomy. Review of the medical evidence of record reveals that the appellant has been treated by VA health care providers. A December 2007 primary care assessment note includes a problem list that contains a notation of status post hemorrhoidectomy 1990. A June 2008 problem list does not include hemorrhoids. Laboratory analysis of the appellant's blood was accomplished on three occasions in 2009; there is no indication that the appellant's hemoglobin levels and hematocrit values were abnormal. A May 2009 primary care note indicates that no masses were found on rectal examination. VA treatment records dated between July 2009 and June 2010 contain no mention of any complaints of or treatment for hemorrhoids. In addition, while the appellant was noted to have blood in his urine in July 2009, there were no complaints of, or diagnosis of, any blood in the appellant's stool during the appeal period. Furthermore, the appellant denied melena during a June 2009 primary care visit. The appellant underwent a VA medical examination in September 2009; the examiner reviewed the appellant's claims file and medical records. The appellant complained of bleeding from his hemorrhoids and he said that he experienced rectal prolapse in conjunction with bowel movements. He also complained of anal itching, burning, pain, swelling and diarrhea. The examiner noted that there was no history of anal infections, proctitis or thrombosis. The examiner also noted that the appellant's diarrhea was related to his non-service-connected gastroesophageal pathology. The appellant refused to undergo a rectal examination so the examiner was unable to provide clinical findings. The examiner noted that the only occupational or daily activity affected by the hemorrhoids was toileting. The RO has rated the appellant's hemorrhoids under Diagnostic Code 7336. Under that Diagnostic Code, mild or moderate hemorrhoids are rated noncompensably disabling. Large or thrombotic irreducible hemorrhoids manifested by excessive redundant tissue evidencing frequent recurrences warrant a 10 percent disability rating. Hemorrhoids involving persistent bleeding with secondary anemia or with fissures warrant a 20 percent disability rating. 38 C.F.R. § 4.114, Diagnostic Code 7336. The Board has weighed the evidentiary value of the appellant's statements against the objective physical findings. The Board concludes that the most probative evidence of the degree of disability is the medical evidence. There is no medical evidence that the appellant has had large, thrombotic, or irreducible hemorrhoids manifested by excessive redundant tissue evidencing frequent recurrences at any time since 2009. There is no clinical evidence of any persistent bleeding or any anemia. There is no clinical evidence of the existence of any fissures. In the absence of evidence to support a finding of symptomatology equivalent to that associated with a compensable rating, the Board concludes that disability or symptoms due to the hemorrhoids are no more than moderate, and thus are non-compensable. In short, there is no evidence of large or thrombotic hemorrhoids that were irreducible, with excessive redundant tissue, or evidence of frequent recurrences, or of persistent bleeding, anemia, or fissures. Given the foregoing findings, specifically the absence of any large or thrombotic hemorrhoids that are irreducible with excessive redundant tissue evidencing or frequent hemorrhoidal recurrences, it is the determination of the Board that the service-connected hemorrhoids are not productive of more than moderate impairment and therefore a compensable evaluation is not warranted. Additionally, there is no suggestion in the record that the rating is not an accurate reflection of the disability experienced by the appellant. Thus, a higher rating is not warranted. The Board has also considered whether a higher or separate rating is merited. The Board finds that no other diagnostic criteria are applicable in this case, however, because the evidence does not indicate that the appellant's hemorrhoids have resulted in any symptoms which are not considered in the present evaluation. In particular, there is no medical evidence linking his diarrhea to his hemorrhoids; this condition has been medically attributed to his diagnosed gastroesophageal pathology, and service connection is not in effect for that condition. No large or thrombotic hemorrhoids that are irreducible with excessive redundant tissue have been clinically documented. No fissures have been identified or noted in any medical examination of record, and there is no clinical evidence of any anemia. Thus, the Board finds that the appellant's claim for a higher rating must be denied. C. Other considerations Notwithstanding the above discussion, increased evaluations for the claimed disabilities could be granted if it were demonstrated that the particular disability presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Given the appellant's complaints associated with employment, the Board has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected sinus and hemorrhoid disabilities. The Veteran has described symptomatology regarding his sinusitis that includes sinus pain, tenderness, antibiotic use and purulent discharge. The Veteran's reported symptom of bleeding from hemorrhoids is specifically contemplated by the pertinent rating criteria. The Veteran, however, does not experience symptomatology not already contemplated by the Rating Schedule. The rating criteria reasonably describe the disabilities and symptomatology. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). The Board acknowledges that the appellant, in advancing this appeal, believes that his claimed disabilities have been more severe than reflected by the currently assigned disability ratings. Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The Board has carefully considered the appellant's contentions and arguments. In this case, however, the competent medical evidence offering detailed descriptions of the sinus and hemorrhoid symptomatology and specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for those disabilities. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of each one of the disability-related symptoms. However, there is no evidence of the use of antibiotics to treat the sinus disability on more than six occasions per year during the appellate period. The preponderance of the most probative evidence does not support assignment of any higher rating than the currently assigned 10 percent evaluation for the sinus disability. In addition, there is no objective clinical evidence of large or thrombotic irreducible hemorrhoids manifested by excessive redundant tissue evidencing frequent recurrences. No fissures have been identified or noted in any medical examination of record, and there is no clinical evidence of any anemia. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the appellant is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. In fact, the grant of the 10 percent evaluation for the sinus disability has been based in part on the appellant's reports about his sinus attacks. He is not, however, competent to identify a specific level of disability according to the governing diagnostic codes. See Espiritu, supra. Such competent evidence concerning the nature and extent of the manifestations of the sinus and hemorrhoid disabilities has been provided by the various medical personnel who have examined the appellant during the current appeal and who have rendered pertinent findings or opinions in conjunction with the evaluations. The medical findings (as provided in the examination report and treatment notes) directly address the criteria under which the manifestations of the appellant's sinus and hemorrhoid disabilities have been evaluated. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the symptoms associated with the sinus and hemorrhoid disabilities. The preponderance of the most probative evidence does not support assignment of any higher rating for either disability. The findings needed for any higher evaluation are not currently demonstrated. Because the preponderance of the evidence is against each claim, the benefit-of-the-doubt doctrine is inapplicable. See Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). As reflected in the decision above, the Board has not found variation in the appellant's sinus symptomatology or clinical findings for the manifestations of that disability which would warrant the assignment of any staged rating. See Hart v. Mansfield, supra. Likewise, there has been no variation in the clinical manifestations for the hemorrhoid disability at any point. Based upon the record, the Board finds that at no time during the claim/appellate period has the sinus disability or the hemorrhoid disability on appeal been more disabling than as currently rated. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a total disability rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered as part and parcel of the claim for benefits for the underlying disability. Id. In this case, the appellant is not appealing an initial rating and there is no evidence of record suggesting that he is unemployable due to his sinus and hemorrhoid disabilities. Therefore, the Board finds that no further consideration of a TDIU award is warranted. For the foregoing reasons, the preponderance of the evidence is against each one of the appellant's two increased rating claims. Since the preponderance of the evidence is against each increased rating claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. New and material evidence claims Decisions of the Board are final, as are unappealed rating actions of the RO. 38 U.S.C.A. §§ 7104, 7105. In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108. New and material evidence necessary to reopen a previously and finally disallowed claim must be secured or presented since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). A claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim pursuant to 38 C.F.R. § 3.156(b). Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007). The appellant's claim of entitlement to service connection for testicular cancer was initially denied by a June 1989 rating decision which became final. 38 C.F.R. § 20.1103. This is so because the appellant did not appeal the rating decision within the time period allowed and because he did not submit any additional evidence or statements concerning his claim within the one-year appeal period either. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The claim was subsequently denied in rating decisions issued in October and November of 2005; the appellant did not appeal either one of these denials. He thereafter submitted a claim to reopen in May 2009. The appellant's claim of entitlement to service connection for prostate cancer was initially denied by an October 2005 rating decision which was confirmed by a November 2005 rating decision which became final. 38 C.F.R. § 20.1103. This is so because the appellant did not appeal the rating decision within the time period allowed and because he did not submit any additional evidence or statements concerning his claim within the one-year appeal period either. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The November 2005 rating decision is also the last time the appellant's two cancer claims were finally disallowed on any basis; that rating decision is final and may not be reopened in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156(a). Therefore, the appellant's claims may be reopened only if new and material evidence has been secured or presented since the November 2005 rating decision. See Glynn v. Brown, 6 Vet. App. 523 (1994). The pertinent regulations require that evidence raise a reasonable possibility of substantiating a claim in order to be considered "new and material," and define material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The appellant's claim for service connection for testicular cancer was denied in essence because his service medical records did not indicate that any testicular condition existed during service or within one year of service separation and because testicular cancer had not been found to be etiologically related to herbicide exposure; any new and material evidence must relate to this. The appellant's prostate cancer claim was denied in part because the appellant had not provided evidence demonstrating that he had been exposed to herbicides on Guam. The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence considered by the RO in making its November 2005 decision included the appellant's DD Form 214; his service medical treatment records; his service personnel records; VA Forms 21-526 submitted in July 1982, and May 1987; VA treatment records dated between 1982 and 2005; the May 1998 report of a VA medical examination; and his May 2005 application for benefits. The appellant's service medical treatment records do not reflect any complaints of, or treatment for, any testicular disorder or any prostate cancer. In July 1974, the appellant underwent a medical examination and no testicular or prostate disorder was noted. The evidence of record accumulated since the November 2005 rating decision includes written statements from the appellant; VA treatment records dated between 2005 and 2010; and copies of newspaper articles and internet materials relating to Guam. A. Testicular cancer The evidence of record reflects that the appellant was diagnosed with a nonseminatous tumor of the left testicle in 1987. He underwent a radical orchiectomy and a diagnosis of teratocarcinoma and embryonal carcinoma of the testis was rendered after examination by a pathologist. The appellant contends that he is entitled to service connection for service connection for testicular cancer because it is a soft tissue sarcoma and therefore presumptive service connection based on exposure to herbicides in Guam is warranted. He has not submitted any medical evidence in support of his soft-tissue sarcoma argument and his medical records currently in evidence do not include any diagnosis of any soft-tissue sarcoma. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e) (2012). Under Section 3 of the Agent Orange Act of 1991, Public Law No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there is a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. The NAS was required to submit reports of its activities every two years. The Secretary, under the authority of the Agent Orange Act of 1991 and based on the studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-08 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007). However, since the Secretary has not specifically found a linkage between teratocarcinoma of the testis and any herbicide exposure, no such testicular cancer can be presumed to be due to Agent Orange exposure. The Board notes that, in 2011, the NAS released Veterans and Agent Orange, Update 2010. This information is available on the NAS publications website, "http://www.nap.edu/," on the Internet. In the report, in the Summary, at Table S-1, on page 8-9, the NAS concluded that there is inadequate or insufficient evidence to determine an association between exposure to herbicides and cancers of the reproductive organs, including the testes. The Update clearly classifies soft-tissue sarcoma as different and separate from cancers of the reproductive organs. Thus, even assuming arguendo that the appellant had been exposed to tactical herbicides on Guam, there is no presumptive service connection for testicular cancer. As previously noted, service connection for testicular cancer has been denied in essence because the service medical treatment records contain no mention of any diagnosis of, or treatment for, any chronic testicular disorder and because there is no nexus opinion relating the claimed pathology to service. There is no evidence indicating that the testicular cancer existed within one year of the appellant's separation from active service in September 1974. Any new and material evidence must relate to this. The evidence added to the record since November 2005 does not address or contradict the reasoning offered in support of the November 2005 rating decision. In other words, it does not tend to support any one of the appellant's contentions in a manner not already shown in November 2005. The newly received evidence merely demonstrates that the appellant continues to maintain that his testicular cancer is a soft-tissue sarcoma that related to his active service, including as due to alleged herbicide exposure in Guam. There is no probative evidence to support the appellant's argument and therefore, the evidence added to the claims file since November 2005 is not material. Evidence may be considered new and material if it contributes "to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998). The evidence submitted since the November 2005 rating decision does not provide relevant information demonstrating that the appellant's testicular cancer was related to some incident of his active military service, including his alleged exposure to herbicidal agents on Guam. No competent medical opinion on this point has been received since the November 2005 rating decision. For the reasons set forth above, none of the evidence added to the record since the November 2005 rating decision, either by itself or in the context of all the evidence, is new and material evidence sufficient to reopen the appellant's claim of entitlement to service connection for testicular cancer. Therefore, the November 2005 rating decision remains final, and the claim of entitlement to service connection for testicular cancer may not be reopened. B. Prostate cancer The appellant has submitted newspaper articles and internet materials both undated and dated in 2006, 2007, and 2009. These materials discussed the use of herbicides such as Agent Orange at Andersen Air Force Base during the 1960s and 1970s. Guam was described as having been a storage facility for Agent Orange during the Vietnam War era. The appellant has stated that he took part in the survey and construction of a large radar installation in early 1974 in which two mountain peaks were defoliated. He indicated that he worked near where herbicide spraying occurred. The November 2005 rating decision denied the appellant's claim of entitlement to service connection for prostate cancer because there was no evidence of exposure to herbicides such as Agent Orange in service. The documents submitted by the appellant are new as they were not previously of record. These documents are also material as they provide possible documentation of the claimed presence of dioxin on Guam during the time the appellant was stationed there. Hence, this evidence specifically relates to an unestablished fact necessary to substantiate the claim for service connection for prostate cancer and raises a reasonable possibility of substantiating the claim. Since the evidence is both new and material, reopening the claim of entitlement to service connection for prostate cancer is warranted. The claim having been reopened, the Board will now consider the matter of entitlement to service connection for prostate cancer. The Veteran is not prejudiced by the Board's consideration of the claim on the merits because the RO considered it on the merits on the February 2010 rating decision. Hickson v. Shinseki, 23 Vet. App. 394 (2010); Bernard v. Brown, 4 Vet. App. 384 (1993). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence. Determinations relative to service connection will be based on review of the entire evidence of record. 38 C.F.R. § 3.303(a). There must be medical evidence of a nexus relating an in-service event, disease, or injury, and a current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), Grottveit v. Brown, 5 Vet. App. 91 (1993). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Caluza v. Brown, 7 Vet. App. 498 (1995). To establish service connection for a disability, symptoms during service, or within a reasonable time thereafter, must be identifiable as manifestations of a chronic disease or permanent effects of an injury. Further, a present disability must exist at some point during the claim process, and it must be shown that the present disability is the same disease or injury, or the result of disease or injury incurred in or made worse by the appellant's military service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 3.303(a); see McClain v. Nicholson, 21 Vet. App. 319 (2007). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Certain chronic disabilities may be presumed to have been incurred in service if they become manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran's 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, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Pain is the sort of condition that is observable by a lay person. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, presumptive service connection for numerous diseases will be established even though there is no record of such disease during service, provided that the disease is are manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases for which service connection may be presumed to be due to an association with herbicide agents include prostate cancer. Review of the appellant's service medical treatment records does not reveal any complaints of, diagnosis of, or treatment for, any prostate disorder. The appellant underwent a service separation examination in July 1974. No prostate disorder was noted on physical examination. The appellant was apparently diagnosed with prostate cancer in 2005. VA's Compensation & Pension Service has determined that a special consideration of herbicide exposure on a factual basis should be extended to veterans whose duties placed them in locations other than Vietnam or Korea. See VA's Adjudication Procedures Manual, M21-1MR, Part IV.ii.2.C.10.oo. The manual sets forth specific steps to verify exposure to herbicides when a veteran with service outside of Vietnam or Korea claims a disability based on herbicide exposure. Review of the claims file indicates that the referenced development has been accomplished. In October 2009, the RO, via email, requested that the Compensation and Pension (C&P) Service review DOD inventory of herbicide operations to determine whether herbicides were used as alleged by the appellant. The appropriate date, location, and unit information were provided. In December 2009, the C&P Service responded to the RO's request. The C&P Service stated that a listing of herbicide use and test sites outside Vietnam was provided to its office by the DOD, and that this list contained 71 sites within the United States and in foreign countries where herbicide/Agent Orange use or testing is acknowledged, but that the list did not contain names of participants, references to routine base management activities such as range management, brush clearing, etc., and that DOD had advised that such small scale herbicide applications had not been compiled into a list. The C&P Service further stated that, regarding the appellant's service, there was no listing of herbicide use or testing in Guam with the exception of a brief period of storage on Guam during the Korean War. The C&P Service noted that commercial herbicides are used on every military base in the world and that these do not fall under the statutes and regulations governing presumptive service connection for tactical herbicide exposure. The C&P Service further noted that tactical herbicide use was terminated in Vietnam during early 1971, and that the remaining stores were shipped to Johnston Island for incineration. Therefore, it was not likely that the appellant was exposed to tactical herbicides on Guam in 1973-74. The C&P Service recommended that the RO request information from the Joint Services Records Research Center (JSRRC). In January 2010, the RO sent a request to JSRRC for verification of the appellant's alleged exposure to herbicides. A response was received later that month that indicated that the appellant's unit maintained a detachment on Guam from August 1973 through May 6, 1974. The unit history did not document the construction of a large radar installation, only surveying at the Naval Communications Station. In addition, the unit history did not document the use of herbicides and DOD sources indicated that tactical herbicides were not used, tested, disposed of or stored on Guam between August 1973 and December 1974. Therefore, verification of the appellant's claimed exposure to such herbicides could not be verified. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of presumptive service connection for prostate cancer, as credible evidence has not been submitted confirming herbicide exposure for this Veteran. Considering first the appellant's own allegations that he was involved in or otherwise exposed to herbicide spraying while stationed in Guam, the Board does not find these statements to be confirmation of herbicide exposure. The Department of Defense has not acknowledged herbicide use in Guam during the Veteran's service there, and the Veteran's contentions, in and of themselves, do not establish such exposure. Considering next the submitted internet materials, news reports and other documents suggesting herbicide use in Guam, the Board notes first that these materials do not place the alleged use at the time of the appellant's service on Guam. Thus, it would be speculative to assume, based on the submitted materials that herbicides were present between December 31, 1973 and May 6, 1974, when the appellant was stationed in Guam. Next, the cited documents suggest herbicides were used in Guam for many years, but this is not based on any evidence from the Department of Defense or the U.S. government. Thus, none of these materials confirms the appellant's alleged herbicide exposure during service in Guam. The appellant has also submitted copies of an October 2005 Board decision in which service connection for diabetes mellitus secondary to herbicide exposure based on that veteran's claimed exposure to Agent Orange while serving at Anderson AFB in the 1960s on Guam was granted. However, this Board decision is not a confirmation that herbicides were used in Guam in the 1960s. Pursuant to 38 C.F.R. § 20.1303, decisions of the Board are considered nonprecedential in nature. Each case is decided on the basis of the individual facts in light of the applicable law and regulations. Apart from the lack of precedential value, because different evidence in the case of another veteran may have resulted in the grant of service connection, the prior Board decision does not compel the conclusion that the facts in this case call for the grant of service connection; in this regard, the Board notes that the October 2005 Board decision discusses no report from either the C&P Service or the JSRRC indicating that there was no Agent Orange spraying, testing, storage or usage at Anderson AFB in 1966 or 1967 (as opposed to 1973-74, when the appellant was stationed there). Therefore, while the Board has considered the prior Board decision, it is not binding and does not control the outcome of this appeal; rather, the facts of this particular case must be determinative. The Board thus finds that the evidence of record establishes that the appellant was not exposed to tactical herbicides, to include Agent Orange, during his service on Guam. As such, the appellant's prostate cancer is not presumed to be the result of in-service disease or injury. The availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A veteran may still be entitled to a grant of service connection on a direct basis if it can be shown that a condition had its onset during his military service, or became manifest to a compensable degree within one year of his separation from such service. See Combee, supra. As to the appellant's claim for prostate cancer, there is no medical evidence of record to establish that he complained of, or was treated for, any such problem while he was on active duty. There is no evidence of record that the appellant experienced any prostate disorder to a compensable degree within one year of his separation from service in September 1974. The claimed prostate cancer is not documented in the clinical evidence of record until approximately 2005, more than 30 years after the appellant's discharge from service in September 1974. There is no evidence of record that the appellant was clinically noted to have any prostate condition until many years after service; the diagnosis of prostate cancer was first discussed in 2005. Furthermore, there is no competent medical opinion that etiologically links the prostate cancer to any aspect of the appellant's active military duty. Nothing in the current record attributes the appellant's prostate cancer to any incident of service, including his claimed herbicide exposure. Chronicity is not demonstrated when the sole evidentiary basis for the asserted continuous symptomatology is written information from the claimant and when "no" medical evidence indicated continuous symptomatology. McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (per curiam). Furthermore, there is no medical evidence of record in this case to establish a nexus between any in-service incident and any claimed prostate pathology. The evidence does not support a finding of prostate cancer to a compensable degree within the first post-service year, and no medical nexus evidence supports a finding of service connection for any such pathology on a presumptive basis. In addition, no probative medical nexus evidence supports a finding of direct service connection for any such pathology. The preponderance of the evidence is against the appellant's claim for service connection for prostate cancer; there is no doubt to be resolved; and service connection for prostate claimed, claimed as due to herbicide exposure, is not warranted. As noted, direct service connection can be established by showing that a claimed disorder was incurred or aggravated during service, which includes the burden of tracing causation to a condition or event during service. Combee, supra. In order to prevail on direct 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, 12 Vet. App. at 253; see also Pond v. West, 12 Vet App. 341, 346 (1999). The Board has considered the appellant's written statements submitted in support of his argument that he has prostate cancer as a result of his service. To the extent that his statements represent evidence of continuity of symptomatology, without more, the appellant's statements are not competent evidence of a diagnosis of said disorder, nor do they establish a nexus between a medical condition and his military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board recognizes the arguments advanced by the appellant that he has prostate cancer that is related to his military service. It is true that a Veteran's 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, 492 F.3d at 1372; Buchanan, 451 F.3d at 1331. However, the appellant does not have the expertise to state that his current pathology is etiologically related to service and a medical opinion would be required. See Davidson, 581 F.3d at 1313. Thus, the Board cannot give decisive probative weight to the opinions of the appellant as to the etiology of any current pathology because he is not qualified to offer such opinions. Therefore, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for prostate cancer in that the probative medical evidence of record indicates there is no causative or etiologic link between service and said current pathology. As such, the evidence is insufficient to support a grant of service connection for prostate cancer. Because the preponderance of the evidence is against the appellant's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER An evaluation in excess of 10 percent for the sinus disability is denied. Entitlement to an evaluation in excess of zero percent for the service-connected hemorrhoid disability is denied. New and material evidence having not been submitted, the request to reopen the claim of entitlement to service connection for testicular cancer is denied. New and material evidence has been presented and the claim for service connection for prostate cancer is reopened. Service connection for prostate cancer, claimed as due to herbicide exposure, is denied. REMAND A determination has been made that additional development is necessary with respect to the remaining issue on appeal. Accordingly, further appellate consideration will be deferred and this case remanded to the RO for action as described below. The appellant contends that his current infection with the Hepatitis C virus (HCV) is due to medical treatment he received in VA health facilities in connection with his back surgery in February 2000. However, the pertinent VA treatment records relating to the back surgery are not in evidence, including the surgical consent forms, the procedure note and the discharge instructions. The informed consent document is important in this case because it relates to the criterion of foreseeability. Although this case is not a medical malpractice action seeking money for tort damages, but rather a claim for monthly VA benefits, the distinction between foreseeability and nonforeseeability is analogous to the concept in such actions. In other words, if medical treatment presents the risk of possible, but rare, adverse results or side-effects known to the provider, then such an outcome is foreseeable, even though unlikely. In such an instance, the patient, by giving his informed consent to the treatment, accepts that the unwanted result may occur even if the treatment is properly administered. On the other hand, if a result occurs which was not foreseeable by the provider or the patient, and there is a qualifying additional disability as defined above, then the law authorizes payment of benefits under 38 U.S.C.A. § 1151 in this type of claim. The appellant was apparently diagnosed with HCV in 2001. In his May 2009 claim for service connection, the appellant has reported that he was incarcerated from 1989 to 1998, and that he was tested for HCV on an annual basis by the Nebraska Department of Corrections. However, no prison medical treatment records have been included in the claims file. Because such records could reflect the onset date and etiology of the claimed pathology, VA is therefore on notice of records that may be probative to the claim. Robinette v. Brown, 8 Vet. App. 69 (1995). In addition, VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the RO should obtain all of the relevant VA treatment records generated since 2000 and not already of record, as well as the appellant's prison medical treatment records, and associate all of those records with the claims file. In addition, as the September 2009 VA medical opinion of record was based on incomplete medical records, it is of little or no probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). Accordingly, a new medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Thus, further development of the medical evidence is necessary. The Court has stated that the Board's task is to make findings based on evidence of record - not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, a remand to the RO is required Therefore, to ensure full compliance with due process requirements, this case is REMANDED to the RO for the following: 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Contact the Veteran to obtain the names and addresses of all post-service medical care providers (private, VA or other government) who have treated him for his HCV. Records from all VA treatment not already of record should be obtained. After securing the necessary release(s), obtain all relevant records and associate them in the claims file. In particular, obtain all outstanding VA treatment records, to include all records, notes and informed consent forms associated with the back surgery in 2000. 3. Connect the Nebraska Department of Corrections/Correctional Services' Medical Services System in order to obtain any and all medical records for the appellant, including all hepatitis testing results. In particular, verify the years the appellant spent in the correctional system and verify whether the prison system tested inmates on a yearly basis for hepatitis and particularly HCV during those years. 4. To the extent an attempt to obtain any of these records is unsuccessful, the claims file should contain documentation of the attempts made. The appellant and his attorney should also be informed of the negative results and be given opportunity to secure the records. 5. After the above development has been completed, arrange for a review of the evidence of record by an appropriate VA physician who has not previously provided an opinion on this matter, such as an infectious diseases specialist. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) and this remand must be reviewed by the physician. If the reviewing physician does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the physician for review. The reviewing physician must consider the evidence of record to provide an opinion as to the specific nature and etiology of the Veteran's HCV infection. The reviewing physician must be advised that the question of negligence is at issue. The reviewer should identify the information on which s/he based the opinions. The reviewer must offer opinions as to whether the onset of the HCV infection was attributable to the Veteran's VA medical treatment as follows: 1) Is it as likely as not that the Veteran's HCV infection was due to carelessness, negligence, lack of proper skill, error in judgment, or similar fault on the part of the VA during his February 2000 surgery and subsequent care at the VA hospital and/or outpatient facility? 2) Is it as likely as not that VA failed to exercise the degree of care that would be expected of a reasonable health care provider? 3) Was the course of treatment the Veteran received related in any manner to the development of the Veteran's HCV infection (including whether the care was untimely or inadequate)?; 4) Was the course of treatment the Veteran received from VA in early 2000 related in any manner to the cause of the Veteran's HCV infection?; and 5) Based on what a reasonable health care provider would have foreseen, is it as likely as not that the proximate cause of the Veteran's HCV infection was an event not reasonably foreseeable? The reviewing physician should define nosocomial infection and comment on any information/studies regarding the relationship, if any, between infection control and sterilization procedures and the spread of HCV infection in a health facility contemporaneous to the Veteran's treatment. If the reviewing physician finds that the Veteran contracted his HCV infection in connection with his 2000 back surgery, the physician must also discuss whether the development of the HCV infection was noted in the informed consent document, whether that was an event not reasonably foreseeable, and whether the way in which the Veteran's HCV infection developed were events not reasonably foreseeable. In this regard, the reviewing physician is referred to the discussion of foreseeability on pages 35-36, above. Note: As to each of the above questions, the reviewing physician should state the conclusion on an at least as likely as not basis (i.e., to at least a 50-50 degree of probability). The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. 6. If any opinion and supporting rationale cannot be provided without invoking processes related to guesses or judgment based upon mere conjecture, the reviewing physician should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewing physician concludes that there is insufficient information to provide an opinion without result to mere speculation, the reviewing physician should state whether the inability to provide a definitive opinion was due to a need for further information (with the needed information identified) or because the limits of medical knowledge had been exhausted regarding the pertinent question. Jones v. Shinseki, 23 Vet. App. 382 (2010). 7. Upon receipt of the report from the reviewing VA physician, conduct a review to verify that all requested opinions have been offered. If information is deemed lacking, refer the report to the VA reviewing physician for corrections or additions. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 8. After all appropriate development has been accomplished, review the record, including any newly acquired evidence, and readjudicate the issue of entitlement to benefits under the provisions of 38 U.S.C.A. § 1151. The readjudication should reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories. 9. If the benefit sought on appeal remains denied, the appellant and his attorney must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, and an appropriate time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs