Citation Nr: 1320548 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-27 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a cancerous tumor of the brain with seizures, claimed as secondary to herbicide exposure. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to an initial disability rating in excess of 10 percent for tinnitus. 4. Entitlement to a higher initial disability rating for bilateral hearing loss, evaluated as noncompensably disabling from August 29, 2008 to May 4, 2011, and as 10 percent disabling from May 5, 2011, forward. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from February 1966 to November 1967, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife provided testimony at an April 2013 Travel Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran had service in Vietnam during active service. 2. The claimed condition (cancerous brain tumor with seizures) is not presumptively associated with herbicide exposure. 3. The Veteran did not incur an injury or disease manifesting in cancer, tumors, or seizures during active service. 4. Symptoms of a cancerous tumor of the brain with seizures were not unremitting in service. 5. Symptoms of a cancerous tumor of the brain with seizures have not been unremitting since service separation. 6. In a January 2010 letter, prior to the promulgation of a decision in the appeal, the Veteran, through his authorized representative, indicated that he wished to withdraw his appeal on the issue of service connection for PTSD. 7. At the April 2013 Travel Board hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal on the issues of higher initial disability ratings for tinnitus and bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for a cancerous tumor of the brain with seizures have not been met, including presumptively based on herbicide exposure. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1116, 1137, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to service connection for PTSD. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to a higher initial disability rating for tinnitus. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 4. The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issue of entitlement to a higher initial disability rating for bilateral hearing loss. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Appeal as to PTSD, Tinnitus, and Hearing Loss Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, by way of correspondence received in January 2010 and at the April 2013 Board hearing, the Veteran has withdrawn the appeal as to the issues of entitlement to service connection for PTSD and to higher initial disability ratings for his service-connected tinnitus and bilateral hearing loss, and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to those issues. Accordingly, the Board does not have jurisdiction to review the appeal as to the issues of service connection for PTSD or higher initial disability ratings for tinnitus and hearing loss, and they are dismissed. Service Connection for Cancerous Tumor of the Brain Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. The claimed condition at issue is not among the "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In certain cases, service connection can be presumed if a veteran was exposed to a herbicide agent during active service. Under the current Code of Federal Regulations (C.F.R.), presumptive service connection is warranted for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). Pursuant to Section 3 of the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs (Secretary) 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 was 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 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. 42,600-608 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); 74 Fed. Reg. 21,258-260 (May 7, 2009). When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 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). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his current cancerous tumor of the brain with seizures is related to herbicide exposure during active service. His service personnel records confirm that he served in Vietnam from November 1966 to November 1967; therefore, he is entitled to a presumption of exposure to herbicides. 38 U.S.C.A. § 1116(f). However, because the Veteran's claimed condition of a cancerous tumor of the brain is not listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), medical nexus may not be presumed as a matter of law. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board is obligated to fully consider the Veteran's service connection claim on a direct basis. See Combee, 34 F.3d at 1043-1044. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that no relevant injury or disease occurred during active service, and that the weight of the evidence demonstrates that symptoms of a cancerous tumor of the brain, including seizures, were not unremitting in service. The November 1967 separation examination report is negative for any signs or symptoms of a brain tumor, nor is there any mention of cancer or neurological problems in the service treatment records. In short, there are no complaints, symptoms, findings, history, diagnoses, or treatment of cancer, tumors, or seizures during active service, providing limited evidence against this claim. The Board next finds that the weight of the evidence demonstrates that symptoms of a cancerous tumor of the brain have not been unremitting since separation from active service in November 1967. Following service separation in November 1967, the evidence of record does not show any complaints, diagnosis, or treatment for seizures or cancer until November 2007, when private treatment records show that the Veteran suffered multiple seizures in one day, and a cranial MRI revealed a right frontal tumor of the brain. The Veteran ultimately underwent a craniotomy in March 2008, which revealed an oligodendroglioma. The absence of post-service complaints, findings, diagnosis, or treatment for 40 years after service separation until 2007 is one factor that tends to weigh against a finding of unremitting symptoms of a cancerous tumor of the brain with seizures after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence demonstrating that symptoms of a brain tumor with seizures have not been present since service separation includes the Veteran's own testimony at the April 2013 Board hearing. He testified that the first time he ever sought treatment for either cancer or seizures was in 2007, providing highly probative evidence against his own claim. The Veteran does not contend that he has had symptoms of a brain tumor since active service. However, to the extent that his more recent assertions made as part of the current compensation claim can be interpreted as a contention of unremitting symptoms of a cancerous brain tumor with seizures since separation from service in November 1967, the Board finds that, while the Veteran is competent to report the onset of observable symptoms caused by the brain tumor, his recent report of unremitting brain tumor and seizure symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board finds that the Veteran's statements as to unremitting brain tumor and seizure symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any complaints, findings or diagnoses of cancer, tumors, or seizures, and the lack of any post-service documentation of treatment or diagnoses of the same until 2007. The Board understands that the critical question in this case is the Veteran's contention that this disability was caused by herbicide/Agent Orange exposure. Regarding the Veteran's statements as to the cause of the current cancerous tumor of the brain with seizures, the Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson, 581 F.3d at 1316 (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau, 492 F.3d 1372). However, in this case, the causes of the Veteran's cancerous tumor of the brain with seizures involve complex medical etiological questions because they deals with the origin and progression of the Veteran's neurological system and disorders of such internal and complex disease process (cancer and seizures) are diagnosed primarily on clinical findings and physiological testing. The Veteran is competent to relate symptoms of the brain tumor that he experienced at any time, but is not competent to opine on whether there is a link between the current brain tumor and herbicide exposure, because such diagnosis requires specific medical knowledge and training. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). For these reasons, the Board finds that weight of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding the relationship between his brain tumor and herbicide exposure. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's current cancerous tumor of the brain with seizures and his military service, including no credible evidence of either a relevant in-service disease or injury, unremitting symptoms of cancer, tumors, or seizures during active service, or unremitting symptomatology of cancer, tumors, or seizures since service separation, which would serve either as a nexus to service or as the factual basis for a favorable medical nexus opinion. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a cancerous tumor of the brain with seizures, and outweighs the Veteran's more recent contentions regarding in-service unremitting brain tumor symptoms and post-service brain tumor symptoms. There is simply nothing that connects the current problem and service more than 40 years ago and the best evidence, including a rather significant gap between service and the start of the disability, supports the denial of this claim. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a timely September 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, including one based on herbicide exposure, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, and the Veteran's statements. The Board acknowledges that the Veteran has not been afforded a VA medical examination specifically geared to the claimed service connection for brain cancer, and has carefully considered this issue; however, the Board finds that a VA examination is not required in order to decide this issue. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with her active military service. In this case, the Veteran's service treatment records are negative for any complaints of or treatment for cancer, tumors, or seizures. Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to brain cancer in service, and there is no duty to provide a VA medical examination. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As explained in this decision, the Board also finds that the weight of the evidence demonstrates no unremitting symptoms of brain cancer or seizures in service and no unremitting symptoms of brain cancer or seizures since service separation. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for a cancerous tumor of the brain with seizures. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles, 16 Vet. App. at 374-75; however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's brain cancer would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's brain cancer with seizures and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed disability is related to military service is the conclusory generalized lay statements of the Veteran, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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). ORDER Service connection for a cancerous tumor of the brain with seizures is denied. The appeal as to the issue of service connection for PTSD is dismissed. The appeal as to the issue of a higher initial disability rating for tinnitus is dismissed. The appeal as to the issue of a higher initial disability rating for bilateral hearing loss is dismissed. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs