Citation Nr: 1328063 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-30 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for hypertension, to include as secondary to in-service herbicide exposure and diabetes mellitus. 2. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for a heart condition, to include congestive heart failure, cardiomyopathy, and angina pectoris, to include as secondary to hypertension. 3. Entitlement to service connection for bladder cancer. 4. Entitlement to an initial compensable evaluation for incision scar, back. 5. Entitlement to an initial compensable evaluation for scar, right eye. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eckart, Carol INTRODUCTION The Veteran served on active duty in the Army from June 1973 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2008, the RO denied service connection for cancer and declined to reopen a previously denied claim for service connection for hypertension. In April 2010, the RO declined to reopen a previously denied claim for service connection for heart disease. In August 2010, the RO granted service connection for back and right eye scars, and assigned noncompensable evaluations, effective August 20, 2009. The Board acknowledges that the Veteran now contends that his hypertension and heart condition are related to service on a direct incurrence basis, whereas previously he maintained that these conditions were secondary to diabetes mellitus. Although there may be multiple theories or means of establishing entitlement to service connection, if the theories of entitlement all pertain to the same benefit for the same disability, then they constitute the same claim and require new and material evidence to reopen. See Roebuck v. Nicholson, 20 Vet. App. 307 (2007); Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). Thus, the Board has previously recharacterized the hypertension and heart claims as noted on the title page to include direct and secondary service connection. The heart claim has also been recharacterized to better reflect the evidence of record. In August 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. The Board remanded this matter for additional development in January 2013. Such has been completed and this matter is returned to the Board for further consideration. The Board's remand previously referred an issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for high cholesterol to the Agency of Original Jurisdiction (AOJ) for appropriate action. As no further action appears to been undertaken regarding this issue, it is again referred the AOJ for appropriate action. The Veteran is noted to have submitted a waiver for AOJ additional evidence in April 2013. Subsequently additional evidence was received by the Board later in April 2013. FINDINGS OF FACT 1. In February 2007, the RO denied the Veteran's claim of service connection for hypertension, to include as due to diabetes secondary to herbicide exposure. The appellant was informed of the adverse decision and his appellate rights and he did not appeal. 2. The evidence submitted since February 2007 is cumulative and redundant, does not relate to an unestablished fact necessary to substantiate the claim of service connection for hypertension, to include as due to herbicide exposure, and does not raise a reasonable possibility of substantiating the claim. 3. In February 2007, the RO denied the Veteran's claim of service connection for a heart disorder, to include as due to diabetes secondary to herbicide exposure. The appellant was informed of the adverse decision and his appellate rights and he did not appeal. 4. The evidence submitted since February 2007 is cumulative and redundant, does not relate to an unestablished fact necessary to substantiate the claim of service connection for a heart disorder to include as due to herbicide exposure, and does not raise a reasonable possibility of substantiating the claim. 5. The competent evidence shows that the Veteran does not experience any current disability due to bladder cancer which may be attributable to active service or any incident of service. 6. The Veteran's scar of his back is superficial, stable and nontender, does not measure six square inches or more, and does not cause any functional loss or loss of motion. 7. The Veteran's service connected scar of the right eye is is superficial, stable and nontender and is not shown to result in any compensable characteristics of disfigurement of the head and neck, as the scar is less than the measurement considered disfiguring by the criteria of either 5 or more inches long (13 or more cm) or at least one quarter inch wide (0.6 cm) at the widest part. No other type of impairment/disfigurement was shown. The scar is also not shown by competent medical evidence to result in any loss of eye function. CONCLUSIONS OF LAW 1. The February 2007 rating decision, which denied the Veteran's claim of service connection for hypertension, to include as due to diabetes/herbicide exposure, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.302 (2012). 2. Evidence submitted since the February 2007 RO decision in support of the claim of service connection for hypertension, to include as due to diabetes/herbicide exposure, is not new and material; accordingly, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 3. The February 2007 rating decision, which denied the Veteran's claim of service connection for a heart disorder, to include as due to diabetes/herbicide exposure, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 20.302 (2012). 4. Evidence submitted since the February 2007 RO decision in support of the claim of service connection for a heart disorder, to include as due to diabetes/herbicide exposure, is not new and material; accordingly, this claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 5. The criteria for service connection for bladder cancer are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 6. The criteria for an initial compensable rating for incision scar of the back are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.7, 4.10, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2012). 7. The criteria for an initial compensable rating for scar of the right eye are not met.. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.7, 4.10, 4.118, Diagnostic Code 7800 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties To Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) and subsequent legislation, VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2012). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Before assessing the merits of the appeal, VA's duties to notify and assist the Veteran must be examined. In a letter issued in April 2008, the RO addressed the hypertension and bladder cancer claims prior to the RO's adjudication of these claims in July 2008. A letter issued in March 2009 addressed the new and material criteria to reopen a previously denied claim heart disorder and discussed the basis for the prior denial. A letter issued in May 2010 addressed the heart claim as for chest pain and shortness of breath, with corrective letter of July 2010 clarifying that the claimed disability of chest pain and shortness of breath was for a heart disorder claim prior to the August 2010 adjudication of the heart claim. The May 2010 letter also addressed initial service connection claims for scars of the back and the right eye prior to the August 2010 adjudication of these claims. In these letters the VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claims. The April 2008 letter (addressing hypertension) and the May 2010 letter (addressing heart disorder) also defined new and material evidence, advised the Veteran of the reasons for the prior denial of the claim of service connection for hypertension and a heart disorder, to include as due to herbicide exposure, and noted the evidence needed to substantiate the underlying claims. That correspondence satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). Regarding the issues regarding the scars of the right eye and the back, the Veteran is now challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA has complied with the notice requirements of VCAA and has no outstanding duty to inform the appellant that any additional information or evidence is needed. Therefore, the Board may decide the appeal without a remand for further notification. Additional notice of the five elements of a service-connection claim was provided in the aforementioned notice letters as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran further was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the timing of the notice, the Board points out that the Court held that notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As discussed above, the notice letters were issued prior to the currently appealed rating decisions which denied the benefits sought on appeal; thus, the notices were timely. As will be explained below in greater detail, the evidence does not support reopening the Veteran's claims of service connection for hypertension and a heart disorder, to include as due to herbicide exposure. Nor does the evidence support granting a claim of service connection for bladder cancer also as due to herbicide exposure. Because the Veteran was fully informed of the evidence needed to substantiate these claims, any failure of the RO to notify the Veteran cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's electronic Virtual VA claims file also has been reviewed and no relevant evidence was located there. Social Security records were obtained. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be explained below in greater detail, because new and material evidence has not been received to reopen the Veteran's claim of service connection for hypertension and a heart disorder, a VA examination is not required. Likewise an examination is not necessary to address the bladder cancer claim as there is no competent medical evidence, other than the Veteran's statements, showing a link between bladder cancer and service. The Veteran is not competent to testify as to etiology of either of these disabilities as they require medical expertise to diagnose. The first prong of the McLendon test (current disability) requires "competent" evidence; the third prong of the test only requires "evidence" that indicates an association with service. Although VA must consider the lay evidence and give it whatever weight it concludes the evidence is entitled to, a "conclusory, generalized lay statement" that an event or illness during service caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Regarding the increased initial ratings claims for the scars of the back and right eye, the Veteran has been afforded an examination to assess the current severity of these disorders. In summary, VA has done everything reasonably possible to notify and to assist the Veteran. II. New and Material Evidence Claim In February 2007, the RO denied the Veteran's claims of service connection for hypertension and for heart disease, to include as due to diabetes/herbicide exposure. Specifically, the RO is noted to have denied service connection for diabetes based on the evidence failing to show inservice exposure to herbicides in this February 2007 decision, and at the same time denied service connection for hypertension and a heart disorder to include as secondary to diabetes, again on the basis that herbicide exposure was not shown. The decision also denied service connection for these disorders on a direct basis and on a one year presumptive basis. As both disorders were denied in the same decision, and as the heart disorder is now claimed as secondary to the hypertension, the Board shall adjudicate both matters together. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2012). The Veteran failed to appeal this decision within one year of receiving notice of the denial on February 10, 2007, and this rating decision became final. The claims of service connection for hypertension and heart disease may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed an application to reopen his previously denied service connection claim for hypertension which was received by the RO on February 19, 2008. He filed his application to reopen his previously denied service connection claim for heart disease which was received by the RO on August 20, 2009. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a) (2012). As relevant to this appeal, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's applications to reopen a claim of service connection for hypertension and heart disease, the evidence before VA at the time of the prior final rating decision in February 2007 consisted of the Veteran's service treatment records, his service personnel records, and his post-service VA treatment records from 2005 to 2006. At the outset, the Board notes that service connection may be achieved for certain disabilities, including ischemic heart disease, and diabetes on a presumptive basis for those Veterans who are presumed to have been exposed to herbicide agents (e.g., Agent Orange) by virtue of their service in Vietnam during the Vietnam Era. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). The previously considered evidence included the Veteran's original application for compensation filed on July 2006, wherein he alleged exposure to Agent Orange in Vietnam in 1972. However his service Form DD-214 explicitly states that he had no service in Vietnam, and likewise had no service in Korea or Indochina. 38 C.F.R. § 3.307(a)(6), 3.309(e) (2012). No foreign service is shown. The DD-214 also indicated that there was no active service prior to his entrance to active duty in June 1973. There is thus no indication from the record that service connection for ischemic heart disease or for consideration of the underlying diabetes mellitus claimed as the secondary causation for the hypertension and heart disease need be considered presumptively based on herbicide agents exposure due to Vietnam service. Id. The service treatment records previously before the RO did not reveal evidence of a hypertension shown in service including on discharge. The post service evidence did not show blood pressure readings meeting the VA criteria for hypertension within one year of discharge from service. (Hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days.). Diagnostic Code 7101, Note (1) (2012). The VA records from 2005 and 2006 show that he carried the diagnosis of hypertension. He was also noted to have a diagnosis of diabetes, noted in the records as early as January 2005. He also had a diagnosis of sarcoidosis shown in these records. Regarding the claimed heart disease, the evidence previously before the RO are silent for any diagnosed heart disease in service or manifested to a compensable disease within one year of discharge. While the service treatment records did include complaints of shortness of breath and chest pain or pressure noted on exertion in the June 1976 report of medical history, his electrocardiogram (EKG or ECG) was normal and no other significant cardiovascular findings were reported. The VA records from 2005 and 2006 were silent for any findings or complaints of a heart disorder of any type. The newly submitted evidence includes additional VA treatment records, private treatment records, Social Security records, and his lay statements and August 2012 Board hearing testimony. The newly submitted VA and private treatment records show that the Veteran was diagnosed with sarcoidosis in May 1989, but no evidence of hypertension or heart disease was shown at the time. His blood pressure readings continued to fall within the normal range in treatment records for sarcoidosis from 1989 through 1996. Likewise VA treatment records from 1996 to 2003 are silent for blood pressure readings suggestive of hypertension or for evidence of heart disease. The newly submitted evidence shows that in January 2004 while being followed up for sarcoidosis, a diagnosis of hypertension was noted. Subsequent records from 2004 recognized the diagnosis of hypertension and this continued to be noted in VA and private records thereafter. Evidence of cardiac disease is first shown in March 2006 when the Veteran was treated for symptoms that included cough, shortness of breath and right rib pain, later diagnosed as acute pneumonia. Tachycardia was noted on examination with cardiac workup done in March 2006 disclosing a diagnosis of sinus tachycardia, left ventricular (LV) hypertrophy with QRS widening T wave abnormality; consider lateral ischemia. Further cardiac findings from the same month were interpreted as mild anterior wall hypokinesia. The treatment records from March 2006 addressing treatment for pneumonia also noted diagnoses of hypertension and hyperlipidemia with diabetes mellitus. Subsequent treatment records through 2009 showed continued treatment for heart disease and a continued diagnosis of hypertension. A February 2009 echocardiogram assessed him as having non ischemic cardiomyopathy with moderately depressed LV function. An April 2009 cardiac consult assessed cardiomyopathy, non ischemic by catheterization as well as angina relieved with nitrate. The February 2009 and April 2009 records treating his heart pathology suggested that there may be possible involvement of sarcoidosis in his heart pathology. The 2009 records also indicated that his medical history included congestive heart failure, with the assessment in July 2009 including hypertension, controlled, and congestive heart failure/cardiomyopathy. None of the additional medical evidence suggested any possible link between either the heart disorder or hypertension and any aspect of active service. Nor does the evidence suggest any relationship between these claimed disorders and diabetes mellitus (which is itself shown by the evidence to not warrant service connection).. The Veteran testified at his August 2012 Board hearing that he had been exposed to Agent Orange while handling materials that he believed had been in Vietnam. He did not allege actual Vietnam service in his testimony. He alleged that his heart disorder began during active duty as he underwent an angiogram for severe chest pain. He testified that this angiogram diagnosed congestive heart failure on active duty. He indicated that he had further treatment for heart problems after service at the VA medical facility in Houston. He testified that he was not diagnosed with hypertension, but suggested that the severe migraine headaches he was having, and for which service connection was in effect, could actually be symptoms of hypertension. He also expressed his belief that pills he was taking for diabetes might be aggravating his hypertension. With respect to the Veteran's applications to reopen the previously denied claims of service connection for hypertension including due to herbicide exposure and diabetes, and for heart disease including as due to hypertension, the Board notes that the evidence which was of record in February 2007 indicated that the Veteran's hypertension and heart disorder was not related to active service and was not caused or aggravated by his alleged in-service herbicide exposure or by diabetes. The evidence does not reflect that he was exposed to herbicides in service, as he is not shown to have served in Vietnam. See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009). While he now alleges exposure to herbicides by handling items he believed to be in Vietnam, he has not submitted further proof that he handled contaminated items and is not shown to be competent to state with any degree of certainty that the items he handled had herbicide contamination. The evidence also does not show that his diabetes, upon which he now claims secondary service connection for hypertension and heart disease, is related to service. While diabetes and ischemic heart disease have been recognized as presumptive to Agent Orange exposure, such presumption does not apply in this instance where such exposure has not been established. The Board finds that, although the evidence received since February 2007 is new, in that it has not been submitted previously to agency adjudicators, it is cumulative or redundant of the evidence at the time of the prior decision which showed that the Veteran's hypertension and heart disease were not related to active service, to include as due to herbicide exposure. Thus, the Board also finds that the evidence received since the February 2007 rating decision denying the Veteran's service connection claim for hypertension and heart disease, to include as due to herbicide exposure, does not relate to an unestablished fact necessary to substantiate this claim, and does not raise a reasonable possibility of substantiating it. The Board finally observes that, in Shade v. Shinseki, 24 Vet. App 110 (2010), the Court recently held that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. In this case, however, there is no reasonable possibility that the newly received evidence would enable rather than preclude reopening the Veteran's previously denied service connection claim for hypertension and heart disease, to include as due to herbicide exposure. Unlike in Shade, there is no evidence in this case - either previously considered in the February 2007 rating decision or received since that decision became final - which demonstrates that any current hypertension and heart disease could be attributed to active service, to include as due to herbicide exposure. Thus, the analysis of new and material evidence claims that the Court discussed in Shade is not applicable to the Veteran's request to reopen his previously denied service connection claims for hypertension and heart disease, to include as due to herbicide exposure. In summary, as new and material evidence has not been received, the previously denied claims of service connection for hypertension , to include as due to herbicide exposure and diabetes and for service connection for heart disease to include as due to hypertension, are not reopened. III. Service Connection Claim The Veteran contends that he incurred bladder cancer as a result of exposure to herbicides during active service. Governing Law and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred during active military service if it is manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). As previously noted in the above adjudication to address the previously denied claims for service connection for hypertension and for a heart disorder, a Veteran who had qualifying active service in the Republic of is presumed to have been exposed to an herbicide agent during that service. Certain diseases including some cancers shall be presumed to have been incurred by such during service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). The Veteran in his August 2012 hearing has testified that he was exposed to Agent Orange from handling materials that came from Vietnam. Elsewhere in written statements he alleged that he served in Vietnam in 1972, despite his DD-214 showing no such service and indicating no service prior to June 1973. As discussed above in the decision addressing the previously denied claims, the evidence does not establish that the Veteran was exposed to herbicides during his active service. Thus consideration of these presumptive provisions pertaining to herbicide exposure or of herbicide exposure on a direct basis is not warranted in this matter. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The service treatment records are silent for any evidence of cancer or bladder disorder. His March 1973 entrance examination reveals a normal genitourinary system and he denied symptoms such as cancer, frequent or painful urination, kidney stone or blood in the urine in the accompanying report of medical history. Likewise his separation examination revealed normal genitourinary system and his report of medical history was again negative for symptoms such as cancer, frequent or painful urination, kidney stone or blood in the urine. There is no evidence of bladder cancer having manifested within one year of discharge from the service. In March 2003 he underwent private hospital treatment for a testicular abscess, with CT scan of the pelvis done which showed no evidence of pelvic mass or pelvic fluid collection and urinary bladder within normal limits. Bladder cancer is not shown until late 2008/early 2009, when an office cystectomy done in December 2008 detected a 0.5 centimeter polyp of the bladder suspicious for low grade TCC and bladder washing suspicious for neoplasm. The diagnosis of bladder cancer was confirmed and he underwent surgery to treat his bladder cancer in February 2009. Subsequent records following treatment noted the history of the diagnosis of bladder cancer. None of the medical evidence suggested that the bladder cancer diagnosed in late 2008 and treated in 2009, was related in any way to the Veteran's active service that took place decades earlier. Again, while the Veteran has alleged that this was related to Agent Orange exposure, there is no need to address this theory of entitlement any further as the evidence does not establish such exposure ever took place. The Veteran's lay testimony at his August 2012 hearing alleged that he had blood in his urine and bladder pain during service, and he believed these symptoms were the beginning of his cancer. See Board hearing transcript dated April 3, 2012, at pp. 7. The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for bladder cancer, to include as due to exposure to Agent Orange. The Board also notes initially that a review of the Veteran's service treatment records shows no complaints of or treatment for bladder cancer, to include any genitourinary manifestations, at any time during the Veteran's active service. Similarly, a review of the Veteran's post-service VA treatment records shows no complaints of or treatment for bladder cancer or its residuals, within one year since his separation from active service in September 1976. It appears that the only relevant evidence submitted by the Veteran in support of this claim consists of private medical treatment records showing the cancer was not manifested until 2008 or 2009 and his August 2012 Board hearing testimony. The Board acknowledges the Veteran's statements and testimony at his hearing regarding the claimed bladder cancer. However, the Board rejects those assertions to the extent that the Veteran seeks to etiologically relate the claimed symptoms to service or a service-connected disability. The Veteran, as a lay person, is not competent to self-diagnose bladder cancer. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran has. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). IV. Increased Ratings for Scars of the Right Eye and Back The Veteran claims his scars of the right eye and back are more severe than currently evaluated from initial entitlement. He filed his claim for service connection in August 2009. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two 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. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. at 509. Regarding the right eye and back scars, however, because the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126. The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). The Veteran's right eye scar is to be evaluated under Diagnostic Code 7800. The Board notes that on September 23, 2008, VA amended certain criteria for evaluating the skin. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). These amendments are only effective for claims filed on or after October 23, 2008, or in cases where the Veteran has requested review under the "new" rating criteria. In the present case, the Veteran's claim was received in November 2008. Thus, the revised rating criteria in effect as of October 23, 2008, are applicable. Under Diagnostic Code 7800 (disfigurement of the head, face or neck) a 10 percent evaluation is warranted for one characteristic of disfigurement. A 30 percent evaluation is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent evaluation is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. A 80 percent evaluation is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Note (1) of this section lists the 8 characteristics of disfigurement for purposes of evaluation under 38 C.F.R. § 4.118. These are: (1) A scar of 5 or more inches (13 or more centimeters (cm)) in length; (2) A scar of at least one-quarter inch (0.6 cm) wide at widest part; (3) Surface contour of a scar is elevated or depressed on palpation; (4) A scar is adherent to the underlying tissue; (5) The skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm); (6) The skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm); (7) The underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm); (8) The skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm). 38 C.F.R. § 4.118 (2012). The Veteran's scar of his back is to be rated under other criteria for scars. Diagnostic Code 7802 provides ratings for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear. Scars that are superficial and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.118. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating is provided for three or four scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) for that code provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) under that provides that scars evaluated under Diagnostic Codes 7800, 7801,7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801,7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Code 7800-04 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic 7805. The rating schedule authorizes the assignment of a zero percent (noncompensable) rating in every instance in which the rating schedule does not provide such a rating and the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2012). Service treatment records revealed that a scar below the right eye and a scar of the back were noted on separation examination. Among the evidence pertinent to this claim filed in August 2009, none of the medical records pertaining to this time period reflect any treatment of or issues with his scars below the right eye and back. In June 2010, the Veteran underwent a VA examination of his scars. Regarding the scar on his back, this was not painful and there was no skin breakdown. He had no other symptoms and no functional impairment. Examination revealed the scar was located over the right lower back and was barely visible. This linear scar measured 5 centimeters by 0.3 centimeters. It was not painful on exam. There was no skin breakdown. This was a superficial scar was without underlying tissue damage. Inflammation was absent. There was no keloid formation. The scar was not disfiguring and did not limit motion or function. The diagnosis was scar on the back. Subjective factors were that he developed a cut on his back when he was scraped by a metal object he was walking past in service. He had no symptoms from this condition. Objective factors were a barely visible scar. The June 2010 VA examination of the eye scar revealed the Veteran to report the scar was not painful. He did not experience skin breakdown. He stated he sometimes had blurry vision with sharp pain in the eye. There was no functional impairment due to his scar. Examination revealed the scar was precisely located over the cheek just below the eye. It was linear and measured 1.5 centimeters by 0.2 centimeters. It was not painful and there was no skin breakdown. It was superficial without underlying tissue damage. Inflammation was not present. There was no edema. There was no keloid. The scar was not disfiguring. There was no limitation of motion or function. There was no adherence. It was level on palpation. The scar was not indurated nor flexible. There was no underlying soft tissue loss and no gross distortion or asymmetry of the forehead, scalp, lips or chin. The diagnosis was scar under right eye. He sometimes had blurry vision and sharp pain in the eye as a result of this condition. Objective factors were a tiny non disfiguring scar under the right eye. There was no impact of any scars on occupation as he was retired. The Veteran's August 2012 hearing testimony described the scar of his back as sometimes hurting with weather changes with sharp pains in his back. His main problem was reported as the scar under the right eye, which hurt and his vision has been blurred. He went to the eye doctor and said he changed his eyeglass prescription once a year. He also noted that his sarcoidosis affected his eye. An April 2013 VA examination of the eyes revealed his right eye to be uncorrected at distance to be 20/50. However his corrected distance and near as well as uncorrected near vision were all 20/40 or better. The left eye was 20/40 for both distance and near, corrected and uncorrected. He did not have a difference equal to 2 or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with the near vision being worse. His pupils were round and reactive to light. He had no pupillary defect present. He had no anatomical loss, light perception only, extremely poor vision or blindness present. There was no astigmatism or diplopia. His external examination was normal except the lens in both eyes had 1-2+ NS and cortical changes. Internal examination of the eyes was normal. Visual field examination revealed no defects of visual field. His eye conditions were cataracts, preoperative in both eyes. He had no decrease in visual acuity or other visual impairment. There was no scarring or disfigurement due to any eye condition and no incapacitating episodes. There was no impact on his ability to work. The scars examination confirmed a scar/disfigurement of the head, face or neck. This was a right infraorbital scar. The scar was from a trauma in service when he was it on the right upper cheek, infraorbital area by a tie down bar. The scar was not painful, unstable or due to burns. The scar had 1 type of disfigurement a 2.5 centimeter by 0.5 centimeter scar on the right upper cheek below the right eye. No other type of impairment/disfigurement was shown. There was no depression, elevation, adherence or missing underlying soft tissue. There was no abnormal pigmentation or texture of the head, face or neck. There was no limitation of function. The scar was stable and well healed. The evidence includes a black and white photograph of the Veteran's face, with a color copy of this photograph submitted in April 2013. The photograph shows a barely visible scar below his right eye. Based on a review of the evidence the Board finds that an initial compensable rating is not warranted for the back scar under any of the applicable criteria. The scar is not shown to be more than superficial, is not shown to be unstable, nor does the area or areas exceed at least 6 square inches (39 sq. cm.) The scar is not shown to be painful. There is also no evidence of limited function shown due to the scar. Thus entitlement to a compensable rating is not warranted for the scar of the back based on the applicable criteria. In regards to the right eye scar, the Board further finds that this scar likewise does not warrant a compensable rating. The scar, measured 2.5 centimeter by 0.5 centimeter scar on the right upper cheek below the right eye. This is less than the measurement considered disfiguring by the criteria of either 5 or more inches long (13 or more cm) or at least one quarter inch wide (0.6 cm) at the widest part. No other type of impairment/disfigurement was shown. The scar is shown to be superficial and is not shown to be unstable, is not shown to meet any of the characteristics of disfigurement under DC 7800. As not even one characteristic of disfigurement contemplated by the applicable criteria is not met, a compensable rating is not warranted. It is also not painful, thus not warranting consideration of a compensable rating under DC 7804. Additionally the evidence does not show any additional disability to the right eye from the service connected scar, such as would warrant a separate compensable evaluation under the criteria for evaluating the severity of eye disorders 38 C.F.R. § 4.79. His corrected vision is 20/40 or better, his visual fields were normal and there were no disabilities of the eye specifically attributed to the service connected scar situated below the eye. While the Veteran has complained of blurred vision, he is not shown to be competent to attribute this to the scarring. In light of the above, the Board finds that a preponderance of the evidence is against the claim of entitlement to an increased disability rating for the right eye scar in this case. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's right eye scar. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER As new and material evidence has not been received, the previously denied claim of service connection for hypertension, to include as due to herbicide exposure and diabetes mellitus, is not reopened. As new and material evidence has not been received, the previously denied claim of service connection for a heart disorder, to include as due to hypertension, is not reopened. Entitlement to service connection for bladder cancer is denied. An initial compensable evaluation for back scar is denied. An initial compensable evaluation for scar, right eye is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs