Citation Nr: 1327384 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 10-07 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for bladder cancer with kidney blockage secondary to Agent Orange and asbestos exposure for accrued benefits purposes. 2. Whether new and material evidence has been received for a claim of service connection for prostate cancer secondary to Agent Orange exposure for accrued benefits purposes. 3. Entitlement to a compensable rating for gout for accrued benefits purposes. 4. Entitlement to service connection for the cause of the Veteran's death. WITNESS AT HEARING ON APPEAL Appellant REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Adrian Jackson, Counsel INTRODUCTION The Veteran served on active duty from June 1952 to June 1956 and May 1957 until December 1972. The Veteran died in November 2008 due to colon carcinoma. The Appellant is his surviving spouse. She appealed to the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Gretna, Louisiana, which denied her claims for service connection for the cause of his death and for dependency and indemnity compensation (DIC) under 38 U.S.C.A. § 1318. The RO also denied claims for accrued benefits to include service connection for bladder cancer with kidney blockage secondary to Agent Orange and asbestos exposure; an increased rating for gout; and reopening a claim of service connection for prostate cancer secondary to Agent Orange exposure. In May 2013, in support of this claim, the Appellant testified at a video conference before the undersigned Veterans Law Judge of the Board. Internet literature related to U.S.S. Valley Forge, received at the time of the Board hearing, is essentially duplicative of evidence previously considered. Thus, the Board may proceed with an adjudication of the appeal without solicitation of a waiver of RO review. 38 C.F.R. § 20.1304(c). The Board will remand the claim for service connection for cause of death to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. VA will notify the Veteran if further action is required. FINDING OF FACT 1. There is no confirmation of the Veteran's actual presence on the landmass of Vietnam or inland waterways, so no resultant presumption of exposure to herbicides. 2. Bladder cancer with kidney blockage was not present in service, it did not become manifest to a compensable degree within one year of the Veteran's discharge from service, and is not shown by competent and credible evidence to otherwise be causally or etiologically related to his service - including to his alleged, but not confirmed or presumed, exposure to herbicides or asbestos. 3. In an unappealed July 2004 decision, the RO initially considered and denied his claim for service connection for prostate cancer, which he alleged was the result of Agent Orange exposure during his military service; in denying this claim, however, the RO noted that there is no confirmation of the Veteran's actual presence on the landmass of Vietnam or inland waterways, so no resultant presumption of exposure to herbicides. 4. The additional evidence received or otherwise obtained since that July 2004 rating decision is cumulative or redundant of evidence already considered in that decision or does not raise a reasonable possibility of substantiating this claim. 5. Prior to his death, the Veteran's gout was characterized by one or two exacerbations in a year in a well-established diagnosis. CONCLUSIONS OF LAW 1. For accrued benefit purposes, bladder cancer with kidney blockage was not incurred in or aggravated by the Veteran's military service and may not be presumed to have been incurred in service, including from exposure to herbicides or asbestos. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The RO's July 2004 decision initially considering and denying his claim for service connection for prostate cancer is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2012). 3. After the July 2004 denial, new and material evidence was not received to reopen a claim for service connection for prostate cancer, for accrued benefits purposes. 38 U.S.C.A. §§ 5101(b), 5108, 5121 (West 2002); 38 C.F.R. §§ 3.156, 3.1000 (2012). 4. The criteria for a rating of 20 percent, but no higher, for gout for the purpose of paying accrued benefits, are met. 38 U.S.C.A. §§ 1155, 5121(a) (West 2002 ); 38 C.F.R. §§ 3.159, 3.321, 3.1000, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5002, 5017 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In Hupp v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C.A. § 5103(a) notice for dependency and indemnity compensation (DIC) cases (including claims for service connection for the cause of a veteran's death) generally must include: (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service-connected. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). In January and April 2009, the Appellant received notification in this regard, as well as information concerning her claims for accrued benefits. In addition to its duties to provide the aforementioned notices to the claimant, VA also must make reasonable efforts to assist the claimant with obtaining the evidence that is necessary in order 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; 38 C.F.R. § 3.159. Although the RO was unable to schedule a VA examination to determine the severity of his gout before his death, VA has, of record, evidence including the Veteran's statements and VA treatment records. As detailed above the Board has already determined that the Appellant received adequate notification which apprised her of the elements necessary to substantiate her claims for accrued benefits. As for evidence that was not constructively of record at the time of the Veteran's death, the Board finds the second prong of Bryant (which will be discussed in more detail, below) to be moot as adjudication of a claim for accrued benefits is limited to the evidence of record at the time of the Veteran's death. In this regard, the Appellant's claims for accrued benefits are derivative of the Veteran's claim at the time of his death and, therefore, she could not offer any further evidence in support of the claims. See Zevalkink v. Brown, 102 F.3d 1236, 1241-42 (Fed. Cir. 1996); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). In other words, further notice would not benefit the Appellant in any way, as the resolution of her claim for purposes of accrued benefits is entirely dependent upon the application of statutes and regulations to the evidence (or facts) of record at the time of the Veteran's death. See Kane v. Principi, 17 Vet. App. 97, 103 (2003); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As noted above, in May 2013, the Appellant testified at a Board hearing before the undersigned. The Court held in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) that there are two duties imposed by 38 C.F.R. 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked-are not impacted by the appellant's receipt of a VCAA-compliant notice letter. These duties were fulfilled and the Appellant has not alleged otherwise. 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). VA has complied with the notice and assistance requirements and the Appellant is not prejudiced by a decision on the claim at this time. Service Connection for Bladder Cancer with Kidney Blockage Secondary to Agent Orange and Asbestos Exposure for Accrued Benefits Purposes In written statements and testimony before the Board, the Appellant asserts that the Veteran was exposed to asbestos and Agent Orange while in service and that such exposure caused or contributed to his death. The Appellant also contends that his military occupation as a photographer required him to ride a helicopter for brief trips to Vietnam where he was exposed to Agent Orange. He was also exposed to asbestos-related material while serving aboard the USS Valley Forge and working in shipyards. She feels that exposure to these toxins caused or contributed to his diagnosed bladder cancer. The law provides that, upon the death of a veteran, a surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of the veteran's death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The application for accrued benefits must be filed within one year after the date of the veteran's death. 38 C.F.R. § 3.1000(c). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." Therefore, in order for a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000; Jones, 136 F.3d 1299. Claims for accrued benefits are derivative in nature, such that a "claimant's entitlement is based on [a] veteran's entitlement" to service connection. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed Cir. 1996). The claim is based on evidence in the file at date of death, which means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4). A review of the record reveals that in April 2008, prior to his death, the Veteran filed claims to reopen entitlement to service connection for prostate cancer, for entitlement to service connection for bladder cancer, and for a compensable rating for gout. Therefore, these claims were pending at the time of his death in November 2008. The Appellant, the Veteran's widow, filed a claim for DIC and accrued benefits in December 2008, well within one year of the Veteran's death. The accrued benefits claim is thus considered timely. See 38 C.F.R. § 3.1000(c). In this regard, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for certain chronic diseases (such as malignant tumors) when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a listed chronic disease (under 38 C.F.R. § 3.309(a) manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology analysis is applicable in cases involving conditions explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a)). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In this matter, the Appellant does not allege, and his service records do not show, that bladder cancer manifested during active service or within the first year of his service discharge. She instead contends that bladder cancer, first diagnosed many years subsequent to discharge from service, was the result of exposure to herbicides and/or asbestos during active military service in the U.S. Navy. With regard to herbicide exposure, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 U.S.C.A. § 1116(a)(4); 38 C.F.R. § 3.307(a)(6)(i); Combee, supra. The regulations clearly define to whom the presumption of exposure applies, and as the record does not show that he physically entered or set foot in Vietnam or traveled on the inland waterways while stationed aboard the USS Valley Forge, he is not entitled to a presumption of exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In this regard, the Veteran's military records, including his personnel records, do not establish that he served in Vietnam so as to, in turn, require presuming he was exposed to herbicides. In comparing the personnel records with Internet records, the Veteran was not aboard the USS Valley Forge at the time it entered the seas off the Vietnam coast in January 1966. His personnel records clearly show he was stationed elsewhere at this time. Furthermore, under 38 C.F.R. § 3.309(e), presumptive service connection based on Agent Orange exposure is only available for certain enumerated diseases. Bladder carcinoma is not among the enumerated diseases listed under 38 C.F.R. § 3.309(e). Therefore, even if it could be proven that the Veteran served in Vietnam, service connection could not be established based on presumptive herbicide exposure. As noted above, even if a Veteran is found not entitled to a regulatory presumption of service connection, the claim still must be reviewed to determine whether service connection may be established on a direct-incurrence basis. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). See also McCartt v. West, 12 Vet. App. 164, 167 (1999). As to disease or injury caused by the alleged asbestos exposure, the Board notes that there is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases, but only special guidelines for developing these claims. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29; Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9. Nonetheless, the M21-1MR provides a non-exclusive list of asbestos related disease which list includes cancer of the urogenital system. See M21-1MR, Part IV.ii.2.C.9.cc. The Veteran's personnel records show that he served aboard the USS Valley Forge and at various naval facilities. Further his occupational specialty was in photography. In addition, while the M21-1MR does not list photographer on the non-exclusive list of occupations that have higher incidents of asbestos exposure, it does list work in shipyards. See M21-1MR, Part IV.ii.2.C.9.f. Furthermore, the M21-1MR provides that the latent period for asbestos related disease varies from 10 to 45 years or more. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29.a; M21-1MR, Part IV, ii.2.C.9.dd. Initially, the Board finds that the Veteran was both competent and credible to report on what he could see and feel while on active duty. Likewise, the Board finds that the Veteran's wife is both competent and credible to report on what her husband related to her regarding his in-service duties, since she met and married him during service. However, as to their competency and credibility in regard to whether any material he came into contact with (or saw) while on active duty was, in fact asbestos, the Board finds that as laypersons neither the Veteran nor his wife is capable of opining on matters requiring special knowledge. Id. Unfortunately neither the Veteran nor his wife provided any detailed accounts of his exposure. Therefore, the Board does not find credible their claims that he came into contact with any material containing asbestos. Similarly, the Board finds that diagnosing a chronic disability due to asbestos exposure including bladder cancer requires special medical training and equipment that the Veteran and his wife do not have and therefore it is a determination "medical in nature" and not capable of lay observation. Id. Therefore, since layperson are not capable of opining on matters requiring medical knowledge, the Board finds that their lay claims regarding the Veteran having a chronic disability due to asbestos exposure including bladder cancer while on active duty and since that time is not competent evidence. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); See also Bostain v. West, 11 Vet. App. 124, 127 (1998). Likewise, the Board finds that despite the latency period for asbestos related disease that the length of time between the Veteran's separation from active duty in 1972 and the first complaints and/or treatment for bladder cancer in 2008 to be compelling evidence against finding continuity. Put another way, without addressing the question of whether his disorder was caused by the Veteran's alleged in-service asbestos exposure, the Board finds that over a quarter century gap between the Veteran's discharge from active duty and the first evidence of the claimed disorder weighs heavily against her claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). The Board also finds the medical record more compelling, which is negative for complaints and/or treatment for or a diagnosis of a chronic disease due to asbestos exposure while on active duty, and for two and a half decades thereafter than any lay claims found in the record. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). In considering direct service-incurrence, the Veteran's service treatment records are unremarkable for any treatment or diagnosis of bladder cancer. Also, there is no indication that a malignant tumor of the bladder initially manifested to a compensable level within one year following service, precluding presumptive service connection for chronic diseases, under 38 C.F.R. § 3.309(a). Still further, the record does not contain a medical link, or nexus, between any asbestos exposure and the Veteran's bladder cancer. In an accrued benefits claim, VA cannot further develop the record by seeking a medical opinion, but rather, must base the decision on the evidence of record at the time of the Veteran's death. 38 C.F.R. § 3.1000(d)(4); Hayes v. Brown, 4 Vet. App. 353 (1993). Accordingly, the Board finds that entitlement to service connection for bladder cancer caused by asbestos exposure and Agent Orange would have been denied based on either a direct or presumptive basis. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Whether there is New and Material Evidence to Reopen the Claim of Entitlement to Service Connection for Prostate Cancer The Veteran and Appellant claimed that the Veteran's diagnosed prostate cancer was related to Agent Orange and/or asbestos exposure. The RO first considered and denied this claim in July 2004. At the time, the evidence included the Veteran's service treatment records (STRs). There were no complaints, diagnoses or findings relating to prostate cancer. The record also includes a May 2003 VA urology note indicating prostate cancer. When denying the claim in July 2004, the RO determined that he did not serve in Vietnam; and that his prostate cancer was otherwise not related to military service. The RO appropriately notified him of the July 2004 decision, including apprising him of his procedural and appellate rights in the event he elected to appeal, but he did not. That decision became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. The Board has considered the potential applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. Here, though, this regulation is inapplicable as no evidence pertaining to the Veteran's claim was received prior to the expiration of that earlier appeal period, that is, during the one-year period following the July 2004 decision initially considering and denying the claim. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); and Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran filed the petition to reopen this claim in April 2008. When a claim to reopen is presented, a two-step analysis is performed. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). According to VA regulation, "new" means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Second, if VA determines the evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring the duty to assist has been satisfied. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000). This second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). The RO's July 2004 decision therefore marks the starting point for determining whether there is new and material evidence to reopen this claim because that was the last final and binding denial of this claim. Evans v. Brown, 9 Vet. App. 273 (1996) (indicating the evidence to be considered when making this new-and-material determination is that added to the record since the last final and binding disallowance of the claim, regardless of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim). The additional evidence since submitted includes the statements of the Veteran and Appellant, as well as VA and private treatment and examination records. In regards to the written statements of the Veteran and Appellant, they continued to argue that he has a prostate cancer attributable to his military service. He made this same allegation before the RO initially considered and denied this claim in July 2004. So, even when initially considering and denying this claim in July 2004, there was recognition and acknowledgment of his personal belief that he had prostate cancer and that it was a result of his military service. Thus, merely reiterating this allegation is not new evidence. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decisionmakers at time of prior final disallowance of the claim is not new evidence). See also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). He did not provide any evidence to contradict the finding that he did not serve in Vietnam. Also since that July 2004 decision, private and VA treatment records have been added to the file, but none are material to the claim in terms of attributing his prostate cancer to his military service. The medical records that pertain to prostate cancer merely confirm the fact that he had a history prostate cancer, a fact which was known at the time of the prior final rating decision. Merely submitting additional medical records of this sort does not address the more determinative issues of causation of this current disability in terms of any potential relationship or correlation with his military service. See Cox v. Brown, 5 Vet. App. 95 (1993) and Morton v. Principi, 3 Vet. App. 508 (1992) (per curiam) (medical records describing Veteran's current condition are immaterial to the issue of service connection and are insufficient to reopen a claim for service connection based on new and material evidence). The Veteran failed to submit any additional records that might otherwise substantiate that he had prostate cancer that was incurred in or aggravated by service. Without such crucial evidence, the petition to reopen a claim for service connection for prostate cancer cannot succeed. The Veteran's argument that his prostate cancer is related to asbestos exposure does not constitute new and material evidence. While this theory may be new, it is not material as it does not raise a reasonable possibility of substantiating the claim given the absence of evidence establishing either asbestos exposure or evidence establishing a relationship between asbestos exposure and prostate cancer. In sum, none of the additional evidence since the prior final and binding decision in July 2004 contradicts the element of service connection that was missing in that prior denial of the claim-i.e., proof of Vietnam service. Thus, there is no new and material evidence to reopen this claim for service connection for prostate cancer, and the petition must be denied. 38 C.F.R. § 3.156. Furthermore, in the absence of new and material evidence, the benefit-of-the-doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Entitlement to a Compensable Rating for Gout for Accrued Benefits Purposes The evaluation assigned for the Veteran's service-connected disability is established by comparing the current manifestations as indicated in recent medical findings with the criteria in the VA Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4. Essentially, these evaluations are based, in large degree, on the impairment that current clinical findings objectively show to be the result of a service-connected disability. Service connection was in effect for gout, and was assigned a noncompensable disability evaluation. The Board has reviewed the Veteran's complete clinical history to comprehensively assess the level of disability during the relevant time period. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Based on in-service treatment records, a December 1973 rating action granted service connection for gout, assigning a 0 percent disability evaluation effective from December 1972. This rating has been in effect since. Gout is addressed in 38 C.F.R. § 4.71a, Diagnostic Code 5017. It is rated as rheumatoid arthritis, Diagnostic Code 5002. A 20 percent rating is assigned for one or two exacerbations per year in a well-established diagnosis. A 40 percent rating is assigned for symptom combinations productive of considerable impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times per year. A 60 percent rating is assigned for less than the criteria for 100 percent but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times per year or a lesser number over prolonged periods. A 100 percent evaluation is assigned for constitutional manifestations associated with active joint involvement, totally incapacitating. Service treatment records show an established diagnosis of gout (based on increased uric acid levels), treated at intervals with medication for exacerbations. Post-service treatment records indicate that the Veteran continued to complain of gout, and had a standing prescription for medication including Allopurinol to treat exacerbations. There is no indication that the Veteran made specific medical appointments to address his exacerbations of gout during this appeal period. As referred to above, the RO was unable to schedule the Veteran for a VA examination due to his illness and eventual death. However, prior to this appeal period, a VA examination was conducted in November 2006. At that time the Veteran reported that due to his gout which affected his toes, he was unable to walk more than a few yards or stand more than a few minutes. He stated that every 3-4 months, he would have moderate flare ups which further affected his ability to stand and ambulate. On examination, he had normal range of motion of all metarsophalangeal (MTP) joints and interphalangeal joints. There was no stiffness or weakness. There were no locking episodes or instances of subluxation or dislocation. There was no deformity, giving way, or instability of the joints. X-ray revealed bone spurs on the plantar and posterior aspects of both calcaneus. The only objective finding on examination was warmth of the right great toe and tenderness of both feet. There were moderate effects on chores, shopping, and traveling with severe effect on exercising. While there are no specific flare-ups shown, the evidence shows that the Veteran was diagnosed with longstanding gout and was prescribed medications to address his gout and gout flare-ups. It is therefore reasonable to assume that he had one or two exacerbations per year. Therefore, the criteria for a 20 percent rating are met. However, it was not shown that there were three or more incapacitating episodes or symptom combinations productive of considerable impairment of health or incapacitating exacerbations occurring three or more times per year. While the Veteran contended that he had exacerbations every three to four months, these exacerbations were not shown by record. As noted above, the Veteran failed to make any clinical appointments concerning such impairment. As noted, VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. Benefit of the doubt was considered in awarding the increased rating for gout. See, Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). The Board has also considered whether the Veteran's gastrointestinal disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). VA regulations require that unless the symptoms and/or degree of impairment due to a service-connected disability can be distinguished from any other diagnosed disorders, VA must consider all symptoms in the adjudication of the claim. See Mittleider v. West, 11 Vet. App. 181 (1998). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. The Veteran's impairment in health and exacerbations are expressly contemplated by the rating schedule. While the Veteran had a well-established diagnosis of gout as well as evidence of functional impairment, the currently assigned 20 percent rating contemplates the difficulties he experienced due to his gout symptoms. Thus, the assigned schedular evaluation is adequate. Consequently, referral for extra-schedular consideration is not warranted. ORDER Service connection for bladder cancer for accrued purpose is denied. In the absence of new and material evidence, the petition to reopen the claim for service connection for prostate cancer is denied. The Board having determined that the Veteran's gout warrant a 20 percent disability rating, the benefit sought on appeal is granted to this extent and is subject to the criteria applicable to the payment of monetary benefits. REMAND In written statements and testimony before the Board, the Appellant asserts that the Veteran was exposed to asbestos and Agent Orange while in service and that such exposure caused or contributed to his death. The Appellant also contends that his military occupation as a photographer required him to ride a helicopter for brief trips to Vietnam where he was exposed to Agent Orange. He was also exposed to asbestos-related material while serving aboard ships and working in shipyards. She feels that exposure to these toxins caused or contributed to his diagnosed prostate and colon diseases. At the time of the March 2009 rating decision on appeal, service connection was in effect for degenerative joint disease (DJD), chronic low back syndrome; neck, ear, and head pain, right side etiology undetermined; gout; and right side mandible scar. The Veteran's DD Form 214 and service personnel records show that he served in the Navy and that his duties more than likely included photography. As referred to above, the adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the Veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the Veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (h). The guidelines provide, in part, that VA must determine whether military records demonstrate evidence of asbestos exposure during service, develop whether there was pre-service and/or post service occupational and other asbestos exposure, and that a determination must be made as to whether there is a relationship between asbestos exposure in service and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997). In the present case, the record reflects that in July 2008, prior to his death, the RO requested that the Veteran provide information regarding his asbestos exposure. Later that month, the Veteran provided general information regarding his claimed exposure. In September 2008, the RO obtained the Veteran's personnel records. However, there does not appear to be any further development, in regard to the asbestos aspect of the claim. The RO did not make any formal finding regarding his claimed asbestos exposure. In the SOC issued in December 2009, the RO noted that the Veteran did not have asbestos-lung-related diseases and denied the claim. The Veteran's death certificate shows that the immediate cause of his death was bladder cancer. In this regard, VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9b notes that inhalation of asbestos fibers can result in cancer of the lung, bronchus, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years between the first exposure and the development of the disease. M21-1MR, Part IV, subpart ii, Chapter 2, Section C, Topic 9d. The Board is unable to review the claim until a determination is made in regards to his claimed asbestos exposure. After taking the necessary steps, a formal finding to this effect should be generated which details the steps that were taken to make this determination. The Appellant should be given time to respond and supply any information regarding these allegations concerning his asbestos exposure. Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for all VA manual-mandated development necessary to properly adjudicate claims based on asbestos exposure, to include a determination regarding the extent of any exposure to asbestos both in service and subsequent to service, and whether or not he had an asbestos-related disease that contributed to cause his death. The RO should take appropriate action to develop evidence as to whether the Veteran was exposed to asbestos during service. Information should be obtained from official government entities including the appropriate service department and/or other appropriate depository. Following such, a formal finding should be issued as to whether the Veteran at least as likely as not was exposed to asbestos in service. Such finding should be added to the record and should include a rationale in support of the conclusion reached. 2. If and only if it is determined that the Veteran was exposed to asbestos during active duty service, the Veteran's claims file should be reviewed by an appropriate medical specialist for an opinion as to whether there is at least a 50 percent probability or greater (at least as likely as not) that a disability of service origin contributed substantially or materially to the cause of the Veteran's death as a result of military service to include asbestos exposure. The claims folder must be made available for review of the case and a notation to the effect that this record review took place should be included in the report. A complete rationale for all opinions expressed should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought remains denied, the Appellant should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs