Citation Nr: 1328382	
Decision Date: 09/05/13    Archive Date: 09/16/13

DOCKET NO.  09-23 071A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim for entitlement to service connection for 
tinnitus.

2.  Whether new and material evidence has been submitted to 
reopen a claim for entitlement to service connection for 
bilateral hearing loss.

3.  Whether new and material evidence has been submitted to 
reopen a claim for entitlement to service connection for a 
headache disorder.

4.  Whether new and material evidence has been submitted to 
reopen a claim for entitlement to service connection for a 
gastrointestinal disorder, to include peptic ulcer disease 
(PUD).

5.  Whether new and material evidence has been submitted to 
reopen a claim for entitlement to service connection for a 
disability due to Agent Orange exposure.

6.  Entitlement to service connection for a thoracolumbar 
spine disorder.

7.  Entitlement to service connection for sleep apnea, to 
include as secondary to service-connected posttraumatic 
stress disorder (PTSD).

8.  Entitlement to service connection for an enlarged 
prostate, to include as due to Agent Orange exposure.


REPRESENTATION

Veteran represented by:	New Jersey Department of 
Military and Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active military service from January 1966 to 
December 1967.   

This matter initially came before the Board of Veterans' 
Appeals (Board) on appeal from September 2008 and April 2009 
rating decisions issued by the RO.  In April 2011, the 
Veteran testified before the undersigned Acting Veterans Law 
Judge in a hearing at the RO.  A transcript of his hearing 
testimony is of record.  

The Board remanded the claims on appeal for further 
development in March 2012.  That development was completed, 
and the case has since been returned to the Board for 
appellate review.  

The Board notes that, in addition to the paper claims file, 
there is a Virtual VA electronic claims file associated with 
the Veteran's claim.  A review of the documents in the 
electronic file reveals that they are either duplicative of 
the evidence in the paper claims file or are irrelevant to 
the issue on appeal herein decided.

The issues of entitlement to service connection for 
rheumatoid arthritis, to include as due to exposure to 
environmental hazards at Camp Lejeune or to Agent Orange and 
entitlement to service connection for insomnia, to include 
as secondary to service-connected PTSD have been raised by 
the record, but have not been adjudicated by the Agency of 
Original Jurisdiction (AOJ).  Therefore, the Board does not 
have jurisdiction over them, and they are referred to 
the AOJ for appropriate action.  

The issues of entitlement to service connection for a 
thoracolumbar spine disorder and sleep apnea, to include as 
secondary to service-connected PTSD are addressed in the 
REMAND portion of the decision below and are REMANDED to the 
RO via the Appeals Management Center (AMC), in Washington, 
DC.


FINDINGS OF FACT

1.  The Veteran's claims for service connection for 
tinnitus, bilateral hearing loss, a headache disorder, a 
gastrointestinal disorder, to include PUD, and a disability 
due to Agent Orange exposure were previously denied by the 
RO in a May 2006 rating decision.  The Veteran did not 
perfect a timely appeal of that decision, and there was no 
new and material evidence received within one year of its 
issuance.  

2.  The evidence received since the May 2006 rating 
decision, by itself, or in conjunction with previously 
considered evidence, is either cumulative or redundant of 
evidence previously of record or does not relate to an 
unestablished fact necessary to substantiate the claims for 
service connection for tinnitus, bilateral hearing loss, a 
headache disorder, a gastrointestinal disorder, to include 
PUD, and a disability due to Agent Orange exposure.

3.  The Veteran served in the Republic of Vietnam during the 
Vietnam era and is presumed to have been exposed during such 
service to certain herbicide agents, including Agent Orange. 
 
4.  The Veteran's enlarged prostate did not manifest in 
service or for many years thereafter and is not related to 
his military service, including herbicide exposure. 


CONCLUSIONS OF LAW

1.  The May 2006 rating decision, which denied service 
connection for tinnitus, bilateral hearing loss, a headache 
disorder, a gastrointestinal disorder, to include PUD, and a 
disability due to Agent Orange exposure, is final. 38 
U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 

2.  The evidence received subsequent to the May 2006 rating 
decision is not new and material, and the claims for service 
connection for tinnitus, bilateral hearing loss, a headache 
disorder, a gastrointestinal disorder, to include PUD and a 
disability due to Agent Orange exposure are not reopened. 38 
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 

3.  An enlarged prostate was not incurred in service and is 
not due to herbicide exposure in service.  38 U.S.C.A. §§ 
1110, 1112, 1116, 1154 (West 2002); 38 C.F.R. §§ 3.102, 
3.303, 3.307, 3.309 (2012). 




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 
5126 (West 2002 & Supp. 2011) redefined VA's duty to assist 
a claimant in the development of a claim.  VA regulations 
for the implementation of the VCAA were codified as amended 
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

The notice requirements of the VCAA require VA to notify the 
claimant of any evidence that is necessary to substantiate 
the claim, as well as the evidence VA will attempt to obtain 
and which evidence he is responsible for providing.  
38 C.F.R. § 3.159(b) (2012).  The requirements apply to all 
five elements of a service connection claim: veteran status, 
existence of a disability, a connection between a veteran's 
service and the disability, degree of disability, and 
effective date of the disability.  Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be 
provided to a claimant before the initial unfavorable 
decision on a claim for VA benefits by the agency of 
original jurisdiction (in this case, the RO).  Id.; see also 
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, 
the VCAA notice requirements may be satisfied if any errors 
in the timing or content of such notice are not prejudicial 
to the claimant.  See Pelegrini, 18 Vet. App. at 121.

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of 
Appeals for Veterans Claims (Court) held that the law 
requires VA to look at the bases for the denial in the prior 
decision and to respond with notice that describes what 
evidence would be necessary to substantiate the element or 
elements required to establish service connection that were 
found insufficient in the previous denial. 

In this case, in a May 2008 letter issued prior to the 
decision on appeal, the Veteran was provided notice 
regarding what information and evidence is needed to 
substantiate his claims for service connection for tinnitus, 
bilateral hearing loss, a headache disorder, a 
gastrointestinal disorder, to include PUD, and a disability 
due to Agent Orange exposure, as well as what information 
and evidence must be submitted by the Veteran and what 
information and evidence will be obtained by VA.  The letter 
advised the Veteran of how disability evaluations and 
effective dates are assigned and of the type of evidence 
which impacts those determinations.  As to the request to 
reopen the claims for entitlement to service connection for 
tinnitus, bilateral hearing loss, a headache disorder, a 
gastrointestinal disorder, to include PUD, and a disability 
due to Agent Orange exposure, the letter described what 
evidence would be necessary to substantiate that element or 
elements required to establish service connection that were 
found insufficient in the previous denial.  

In a February 2009 letter issued prior to the decision on 
appeal, the Veteran was provided notice regarding what 
information and evidence is needed to substantiate his claim 
for service connection for an enlarged prostate, as well as 
what information and evidence must be submitted by the 
Veteran and what information and evidence will be obtained 
by VA.  The letter advised the Veteran of how disability 
evaluations and effective dates are assigned and of the type 
of evidence which impacts those determinations.  

The record also reflects that VA has made reasonable efforts 
to obtain relevant records adequately identified by the 
Veteran.  Specifically, the information and evidence that 
have been associated with the claims file include the 
Veteran's service treatment records (STRs), private 
treatment records, and VA treatment records.  The Veteran 
has not identified any outstanding records that are 
pertinent to the claims being decided herein.  In this 
regard, pursuant to the March 2012 remand instructions, all 
outstanding records of VA treatment were requested and were 
included in the Veteran's Virtual VA electronic claims file.  
Thus, the Board finds that there was substantial compliance 
with the March 2012 remand directives.  Accordingly, no 
further remand is necessary.  See Stegall v. West, 11 Vet. 
App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 104 
-05 (2008).

In addition, the Veteran was afforded an April 2012 VA 
examination and January 2012 opinion in connection with his 
claim for service connection for an enlarged prostate.  When 
VA undertakes to provide a VA examination or obtain a VA 
opinion, it must ensure that the examination or opinion is 
adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  
The Board finds that the examination and medical opinion 
obtained in this case are adequate, as they are predicated 
on a full reading of the Veteran's claims file.  The 
examiner considered all of the pertinent evidence of record, 
to include the statements of the Veteran, and provided a 
rationale for the opinions stated.  Additionally, regarding 
the claims to reopen, examinations were not required, 
because there is no duty to provide such an examination 
unless new and material evidence is submitted. 38 C.F.R. § 
3.159(c). Accordingly, the Board finds that VA's duty to 
assist has been met. 38 C.F.R. § 3.159(c)(4). 

Finally, the Veteran was also afforded an opportunity to 
present testimony at a hearing before the Board.  During the 
hearing, the undersigned Acting Veterans Law Judge clarified 
the issues on appeal, identified an evidentiary deficit, and 
suggested the submission of additional evidence to support 
the Veteran's claims.  The actions of the Acting Veterans 
Law Judge supplement the VCAA and comply with any related 
duties owed during a hearing.

Based on the foregoing, the Board concludes that there has 
been compliance with the duty to notify and assist 
provisions.  The Veteran was notified and aware of the 
evidence needed to substantiate his claims, the avenues 
through which he might obtain such evidence, and the 
allocation of responsibilities between himself and VA in 
obtaining such evidence.  The Veteran was an active 
participant in the claims process by providing evidence and 
argument and presenting for a VA examination.  Thus, he was 
provided with a meaningful opportunity to participate in the 
claims process and has done so.  Any error in the sequence 
of events or content of the notices is not shown to have any 
effect on the case or to cause injury to the Veteran.  
Therefore, any such error is harmless and does not prohibit 
consideration of this matter on the merits.  See Dingess, 
supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 
(Fed. Cir. 1998).

New and Material - Law and Analysis

The Board observes that the Veteran's claims for service 
connection for tinnitus, bilateral hearing loss, a headache 
disorder, a gastrointestinal disorder, to include PUD, and a 
disability due to Agent Orange exposure were previously 
considered and denied by the RO in a rating decision dated 
in May 2006.  The evidence of record at the time of the May 
2006 denial included the Veteran's STRs, VA treatment 
records and the report of an April 2006 VA audio 
examination.  In the May 2006 decision, the RO found that 
the Veteran's tinnitus and bilateral hearing loss were not 
incurred in or aggravated during active duty service; the 
treatment records did not show treatment for chronic 
headaches that were incurred in service; there was no 
evidence of treatment for a current gastrointestinal 
disorder, to include PUD; and, there was no identified 
disability associated with Agent Orange exposure.  

With regard to the claims for service connection for 
tinnitus and bilateral hearing loss, the report of April 
2006 VA audio examination reflected the Veteran's report 
that his hearing was okay and he did not experience any 
difficulty communicating.  He complained of constant 
bilateral tinnitus; however, he was uncertain of the onset 
of the tinnitus.  He reported that he was exposed to 
excessive noise when he was a combat engineer and was around 
explosives and jackhammers for a period of two years without 
the use of hearing protection.  He also reported a 40 year 
history of excessive noise exposure subsequent to his 
military service when he worked construction without the use 
of hearing protection.  Pure tone thresholds, in decibels, 
were as follows:




HERTZ




500
1000
2000
3000
4000
RIGHT

5
5
0
30
LEFT

15
0
15
45

Speech discrimination was 100 percent in the right ear and 
96 percent in the left ear.  The examiner concluded that the 
Veteran's current hearing loss was not the result of noise 
exposure while in the military since his hearing was normal 
upon discharge.  The examiner also concluded that the 
tinnitus was not the result of military noise exposure 
because the Veteran was unsure of date of onset and he had a 
40 year history of occupational noise exposure without the 
use of hearing protection.

With respect to the Veteran's claim for service connection 
for headaches, the treatment records document report of a 
history of and complaints of headache.  Regarding the 
Veteran's claim for service connection for a 
gastrointestinal disorder, the STRs reflect that the Veteran 
received treatment for complaints of stomach pain in August 
1967.  STRs otherwise contain no complaints of, treatment 
for or diagnosis of a gastrointestinal disorder to include 
PUD.  The post service treatment records documented a report 
of a history of bleeding ulcers.  There was no complaint of 
or indication of current disability related thereto.  As to 
the claim for service connection for a disability due to 
Agent Orange exposure, the Veteran did not identify or claim 
a disability related thereto.

The Veteran was notified of the May 2006 rating decision and 
of his appellate rights, but he did not perfect a timely 
appeal with that decision.  In general, rating decisions 
that are not timely appealed are final. See 38 U.S.C.A. § 
7105; 38 C.F.R. § 20.1103.   Moreover, the Board notes that 
the Veteran did not submit new and material evidence or 
other information within one year of the issuance of that 
decision.  38 C.F.R. § 3.156(b).  Therefore, the Board finds 
that the May 2006 rating decision became final.

The Veteran's current application to reopen his claims for 
service connection for tinnitus, bilateral hearing loss, a 
headache disorder, a gastrointestinal disorder, to include 
PUD and a disability due to Agent Orange exposure was 
received in December 2007.  The September 2007 rating 
decision now on appeal denied the Veteran's claims on the 
basis that new and material evidence had not been submitted. 

The Board, in the first instance, must rule on the matter of 
reopening a claim.  The Board has a responsibility to 
consider whether it is proper for a claim to be reopened, 
because reopening is jurisdictional.  Jackson v. Principi, 
265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 
F.3d 1380 (Fed. Cir. 1996).

In order to reopen a claim which has been denied by a final 
decision, the claimant must present new and material 
evidence. 38 U.S.C.A. § 5108.  New and material evidence 
means evidence not previously submitted to agency 
decisionmakers; which relates, either by itself or when 
considered with previous evidence of record, to an 
unestablished fact necessary to substantiate the claim; 
which is 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 which raises a reasonable 
possibility of substantiating the claim. 38 C.F.R. § 
3.156(a).  To reopen a previously disallowed claim, new and 
material evidence must be presented or secured since the 
last final disallowance of the claim on any basis, including 
on the basis that there was no new and material evidence to 
reopen the claim since a prior final disallowance. Evans v. 
Brown, 9 Vet. App. 273, 285 (1996). For purposes of 
reopening a claim, the credibility of newly submitted 
evidence is generally presumed. Justus v. Principi, 3 Vet. 
App. 510, 513 (1992).

The threshold for determining whether new and material 
evidence raises a reasonable possibility of substantiating a 
claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 
(2010).  Furthermore, in determining whether this low 
threshold is met, VA should not limit its consideration to 
whether the newly submitted evidence relates specifically to 
the reason why the claim was last denied, but instead should 
ask whether the evidence could reasonably substantiate the 
claim were the claim to be reopened, to include by 
triggering the Secretary's duty to assist. Shade, 24 Vet. 
App. at 118. 

The evidence associated with the Veteran's claims file since 
the May 2006 rating decision was issued includes VA medical 
records, an April 2010 Audiology consult record, as well as 
the Veteran's hearing testimony before the undersigned in 
April 2011 and his various other statements. 

With respect to the additional VA medical records, the Board 
finds that they are new because they were not of record at 
the time of the May 2006 rating decision.  However, the 
majority of those records do not document any complaints, 
treatment, or diagnosis of tinnitus, bilateral hearing loss, 
a headache disorder, a gastrointestinal disorder to include 
PUD and a disability due to Agent Orange exposure, and thus, 
they are not material.  An April 2008 treatment record 
reflects, in pertinent part, that a review of the Veteran's 
systems showed complaints of chronic headaches which had not 
changed.  There was no nausea or vomiting; previous MRI was 
normal.  Review of gastrointestinal symptoms showed no 
abdominal pain, rectal bleeding or change in bowel habits.  
A January 2009 VA treatment record shows, in pertinent part, 
that review of gastrointestinal system was normal.  A March 
2009 VA treatment record reflects, in pertinent part, the 
Veteran's complaint of occasional headaches (not 
consistently) in the morning and occasional abdominal 
discomfort beneath the umbilicus (infrequent but occurred 
weekly and last up to half an hour and was unrelated to any 
specific food).  There was no change in bowel habits except 
for some constipation since he started the Methotrexate.  
The Veteran was not interested in evaluating the symptoms 
further.  An April 2010 VA audiology consult record reflects 
that the Veteran was not very forthcoming with history 
information.  The examiner documented that the previous 
examination report indicated military noise exposure from 
the combat engineers including explosions and jackhammers 
and that the Veteran also worked construction for 40 years 
without hearing protection.

Notably absent in this additional evidence is discussion as 
to whether Veteran's tinnitus and bilateral hearing loss 
were incurred in or aggravated during active duty service; 
discussion as to whether chronic headaches were incurred in 
service; evidence of treatment for a current 
gastrointestinal disorder, to include PUD; and, evidence of 
an identified disability associated with Agent Orange 
exposure.  As such, the records do not relate to an 
unestablished necessary to substantiate the claims.  Rather, 
they reiterate the Veteran's contentions which were already 
established at the time of the prior rating decision.  
Therefore, the Board finds that the additional VA medical 
records are not new and material.

With respect to the Veteran's April 2011 hearing testimony 
and other lay assertions, the Board also finds that they are 
not sufficient to reopen the previously denied claims.  
Essentially, the Veteran reiterated previous contentions.  
The Board finds his hearing testimony and lay statements to 
be cumulative and redundant of the evidence considered at 
the time of the May 2006 rating decision.  Although the 
April 2011 hearing testimony may be new, his contentions 
remained the same as those previously considered by the RO.  
Therefore, the hearing testimony and lay statements are not 
new and material evidence and the claims are not reopened.

Service Connection - Law and Analysis

Service connection may be granted for disability resulting 
from personal injury suffered or disease contracted during 
active military service, or for aggravation of a pre-
existing injury suffered, or disease contracted, during such 
service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  
Establishing service connection generally requires (1) 
evidence of a current disability; (2) evidence of in-service 
incurrence or aggravation of a disease or injury; and (3) 
evidence of a nexus between the claimed in-service disease 
or injury and the present disability. Shedden v. Principi, 
381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. 
Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 
F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.  
Service connection also may be granted for any disease 
initially diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d). 

Veterans who, during active service, served in the Republic 
of Vietnam during the period beginning on January 9, 1962, 
and ending on May 7, 1975, shall be presumed to have been 
exposed to an herbicide agent, unless there is affirmative 
evidence of non-exposure.  38 U.S.C.A. §§ 1116; 38 C.F.R. § 
3.307. 

If a veteran was exposed to a herbicide agent (to include 
Agent Orange) during active military, naval or air service 
and has contracted an enumerated disease to a degree of 10 
percent or more at any time after service (except for 
chloracne and acute and subacute peripheral neuropathy which 
must be manifested within a year of the last exposure to an 
herbicide agent during service), the veteran is entitled to 
a presumption of service connection even though there is no 
record of such disease during service.  38 U.S.C.A. § 1112; 
38 C.F.R. § 3.307, 3.309(e).  The enumerated diseases 
include prostate cancer.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 
3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. 

VA has determined there is no positive association between 
exposure to herbicides and any other condition for which the 
Secretary has not specifically determined that a presumption 
of service connection is warranted.  See Notice, 68 Fed. 
Reg. 27630 -27641 (2003).  A presumption of service 
connection based on exposure to herbicides used in the 
Republic of Vietnam during the Vietnam Era is not warranted 
for various conditions and any other condition for which the 
Secretary has not specifically determined a presumption of 
service connection is warranted.  See Notice, 72 Fed. Reg. 
32,395-32,407 (Jun. 12, 2007); see also Notice, 74 Fed. Reg. 
21,258 -21260 (May 7, 2009). 

Notwithstanding the foregoing, regulations also provide that 
service connection may be granted for any disease diagnosed 
after discharge, when all evidence, including that pertinent 
to service, establishes that the disability was incurred in 
service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 
(Fed. Cir. 1994).  A presumption of service connection 
provided by law is not the sole method for showing causation 
in establishing a claim for service connection for 
disability due to herbicide exposure. Stefl v. Nicholson, 21 
Vet. App. 120   (2007) (holding that the availability of 
presumptive service connection for some conditions based on 
exposure to Agent Orange does not preclude direct service 
connection for other conditions based on exposure to Agent 
Orange). 

The Board is required to render a finding with respect to 
the competency and credibility of the lay evidence of 
record.  Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006).  
Competent, credible lay evidence could be, in and of itself, 
sufficient to establish an elemental fact necessary to 
support a finding of service connection.  Jandreau v. 
Nicholson, 492 F. 3d 1372, 1376 (2007).  As a fact finder, 
the Board is obligated to determine whether lay evidence is 
credible in and of itself. The Board cannot determine that 
lay evidence lacks credibility solely because it is 
unaccompanied by contemporaneous medical evidence, but it 
may consider a lack of contemporaneous medical evidence as 
one factor in determining the credibility of  
lay evidence.  Buchanan v. Nicholson, 451 F. 3d 1331, 1336-
1337 (Fed. Cir. 2006). Credibility is a factual 
determination going to the probative value of the evidence, 
to be made after the evidence has been admitted or deemed 
competent.  Cartwright v. Derwinski, 2 Vet. App. 24 (1991).  
Board determinations with respect to the weight and 
credibility of evidence are factual determinations going to 
the probative value of the evidence.  Layno v. Brown, 6 Vet. 
App. 465, 469 (1994). 
 
A veteran is competent to describe symptoms that he 
experienced in service or at any time after service when the 
symptoms he perceived, that are, experienced, were directly 
through the senses.  38 C.F.R. § 3.159 (competent lay 
evidence means any evidence not requiring that the proponent 
have specialized education, training, or experience; lay 
evidence is competent if it is provided by a person who has 
knowledge of facts or circumstances and conveys matters that 
can be observed and described by a lay person.); Layno, 6 
Vet. App. at 469-71 (lay testimony is competent as to 
symptoms of an injury or illness, which are within the realm 
of one's personal knowledge; personal knowledge is that 
which comes to the witness through the use of the senses; 
lay testimony is competent only so long as it is within the 
knowledge and personal observations of the witness, but lay 
testimony is not competent to prove a particular injury or 
illness); Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay 
testimony is competent to establish the presence of 
observable symptomatology, where the determination is not 
medical in nature and is capable of lay observation). 
 
Lay evidence may establish a diagnosis of a simple medical 
condition, a contemporaneous medical diagnosis, or symptoms 
that later support a diagnosis by a medical professional.  
Jandreau, 492 F. 3d at 1377.  A veteran is also competent to 
offer an opinion on a simple medical condition.  Davidson v. 
Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (citing 
Jandreau).  
 
VA must consider the competency of the lay evidence and 
cannot outright reject such evidence on the basis that such 
evidence can never establish a medical diagnosis or nexus; 
however, this does not mean that lay evidence is necessarily  
always sufficient to identify a medical diagnosis, but 
rather only that it is sufficient in those cases where the 
layman is competent and does not otherwise require 
specialized medical training and expertise to do so, i.e., 
the Board must determine whether the claimed disability is a 
type of disability for which a layperson is competent to 
provide etiology or nexus evidence.  Davidson, 581 F. 3d at 
1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay 
evidence can be competent and sufficient to establish a 
diagnosis of a condition when a layman is competent to 
identify the medical condition; he is reporting a 
contemporaneous medical diagnosis; or lay testimony 
describing symptoms at the time supports a later diagnosis 
by a medical professional).  
 
The Board has reviewed all of the evidence in the Veteran's 
claims file, with an emphasis on the evidence relevant to 
this appeal.  Although the Board has an obligation to 
provide reasons and bases supporting its decision, there is 
no need to discuss, in detail, every piece of evidence of 
record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 
2000).  Hence, the Board will summarize the relevant 
evidence where appropriate, and the analysis below will 
focus specifically on what the evidence shows, or fails to 
show, as to the claim.  
 
When there is an approximate balance of positive and 
negative evidence regarding the merits of an issue material 
to the determination of the matter, the benefit of the doubt 
in resolving each such issue shall be given to the claimant.  
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011).  
When all of the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the veteran prevailing in either 
event, or whether a fair preponderance of the evidence is 
against the claim, in which case the claim is denied.  
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In this case, the Veteran contends that his claimed enlarged 
prostate is related to his military service.  Specifically, 
he has asserted that his claimed enlarged prostate is 
related to his herbicide exposure while he was serving in 
the Republic of Vietnam.  

The Veteran served in the Republic of Vietnam during his 
period of service.  As such, he served in the Republic of 
Vietnam during the Vietnam era and is therefore presumed to 
have been exposed during such service to certain herbicide 
agents, including Agent Orange.  Nevertheless, the Board 
finds that no injury, disease, or chronic symptoms of an 
enlarged prostate was manifested during the Veteran's 
military service.  In fact, his STRs do not document any 
treatment for or diagnosis of an enlarged prostate.

Additionally, the Veteran's claimed enlarged prostate is not 
related to his herbicide exposure during service.  An 
enlarged prostate is not on the list of diseases that VA has 
associated with Agent Orange exposure.  The scientific 
studies reviewed as part of that regulatory process has 
associated prostate cancer with herbicide exposure, but not 
an enlarged prostate.  Moreover, an April 2008 VA treatment 
record reflects that the Veteran's prostate was not 
enlarged.  Regardless, a VA physician in the January 2013 VA 
opinion stated that an enlarged prostate was not prostate 
cancer and therefore unrelated to Agent Orange exposure.  

In this case, the evidence does not link the onset of the 
enlarged prostate to the period of active service.  Despite 
the Veteran's contentions that his enlarged prostate is due 
to such exposure, he is not competent to provide such a 
complicated opinion assessing the causation of a particular 
kind of prostate condition based on chemical exposures. No 
other competent and probative opinion suggests that there a 
relationship, or nexus, between the claimed enlarged 
prostate (or even a diagnosis thereof) and the Veteran's 
active service.  In the January 2013 VA opinion, the 
examiner explicitly stated that an enlarged prostate was 
unrelated to Agent Orange exposure, explaining that an 
enlarged prostate was not prostate cancer.  Neither the 
Veteran nor his representative has identified, presented, or 
alluded to the existence of any medical evidence or opinion 
to contradict that provided by the VA examiner (which was 
based on a review of the medical records).
 
The only evidence of record supporting the Veteran's claim 
is his general lay assertions.  In this case, the Board 
finds that the Veteran is competent to state that he has an 
enlarged prostate.  See Jandreau v. Nicholson, 492 F.3d 
1372, 1376-77 (Fed. Cir. 2007).  But he is not competent, as 
noted above, to provide such a complex medical opinion that 
goes beyond the knowledge of a lay person. Moreover the 
Board finds the opinion of the VA examiner in the January 
2013 VA opinion statement to be more probative.  The VA 
examiner is a medical professional who has reviewed the 
claims file and considered the Veteran's assertions.  The 
examiner used his expertise in reviewing the facts of this 
case and determined that an enlarged prostate was unrelated 
to the Veteran's service, to include Agent Orange exposure. 
It is clear that the examiner fully understood the basis for 
the Veteran's claim yet still determined, after reviewing 
the facts of the case, that the claimed enlarged prostate 
was unrelated to Agent Orange exposure.  

For the foregoing reasons, the Board finds that the claims 
of entitlement to service connection for an enlarged 
prostate, to include as due to Agent Orange exposure must be 
denied.  In reaching this conclusion, the Board has 
considered the applicability of the benefit-of-the-doubt 
doctrine.  However, as the preponderance of the evidence is 
against the claim, that doctrine is not applicable. See 38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 
1 Vet. App. 49, 53-56 (1990).


ORDER

New and material evidence not having been submitted, the 
applications to reopen claims of entitlement to service 
connection for tinnitus, bilateral hearing loss, a headache 
disorder, a gastrointestinal disorder, to include PUD, and a 
disability due to Agent Orange exposure are denied. 

Service connection for an enlarged prostate, to include as 
due to Agent Orange exposure is denied.


REMAND

Remand is required regarding the Veteran's claims for 
service connection to obtain adequate examinations.  Where 
VA provides the veteran with an examination in a service 
connection claim, the examination must be adequate.  Barr v. 
Nicholson, 21 Vet. App. 303, 311 (2007).  

Initially, the Veteran engaged in combat with the enemy.  
The Veteran's DD Form 215 reflects that he received the 
Combat Action Ribbon which denotes combat.  Thus, the combat 
provisions of 38 U.S.C.A. § 1154 are applicable in this 
case.  As he is a combat veteran, his testimony and lay 
statements of sustaining a back injury during service as a 
result of heavy lifting and building bunkers is accepted as 
consistent with the circumstances, conditions, or hardships 
of his service, notwithstanding the lack of official record 
of such incurrence or aggravation.  See 38 U.S.C.A. § 
1154(b) (west 2002); Libertine v. Brown, 9 Vet. App. 521, 
524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. 
Cir. 1996). 

Report of April 2012 VA examination documents the Veteran's 
report that he developed a low back and lumbar spine 
condition due to heavy lifting and building bunkers during 
his period of military service which resulted in his current 
low back and lumbar spine disorder.  Following objective 
examination, the diagnosis was lumbosacral strain with range 
of motion abnormality of the lumbar spine.  The examiner 
opined that the Veteran's current low back or lumbar spine 
condition was not caused by or a result of his military 
service.  The examiner explained that the opinion was based 
on a history and physical examination of the Veteran, review 
of the C-file and the Veteran's discharge physical 
examination dated December 11, 1967, which revealed no 
evidence of lumbar spine condition at time of military 
discharge.

Under these circumstances, the Board finds additional VA 
examination is necessary to address the etiology of the 
claimed thoracolumbar spine disorder.  For purposes of the 
examination, as he is a combat veteran, the examiner should 
accept the Veteran's statements of sustaining a back injury 
during service as a result of heavy lifting and building 
bunkers as consistent with the circumstances, conditions, or 
hardships of his service.  Given that acceptance, the 
examiner should offer opinion as to whether the Veteran's 
current thoracolumbar spine disorder (lumbosacral strain) is 
due to disease or injury incurred in service.

Here, in a January 2013 VA opinion, the examiner concluded 
that it was unlikely that PTSD was implicated in causality 
of obstructive sleep apnea.  The examiner did not, however, 
expressly state whether obstructive sleep apnea was 
aggravated by the PTSD.  In a secondary service connection 
claim, a medical opinion that a disorder is not the result 
of an already service-connected disability does not address 
the issue of aggravation.  El-Amin v. Shinseki, 26 Vet. App. 
136, 140-41 (2013). Where an examiner finds that a service-
connected disability did not cause a claimed disorder and 
that the claimed disorder was more likely related to other 
factors, it isn't clear that aggravation has been addressed.  
El-Amin, 2013 WL 151154, *4-5.  Accordingly, remand is 
required for a VA addendum opinion.



Accordingly, the case is REMANDED for the following action:

1.  Obtain an addendum opinion from a VA 
examiner regarding the thoracolumbar 
spine disorder.  The entire claims file 
(i.e., both the paper claims file and 
any electronic medical records) should 
be made available to and be reviewed by 
the examiner, and it should be confirmed 
that such records were available for 
review.  If the examiner does not have 
access to electronic medical records, 
any such relevant treatment records must 
be printed and associated with the paper 
claims file so they can be available to 
the examiner for review.  If the 
examiner determines an examination is 
required, such an examination shall be 
provided.  The rationale for all 
opinions expressed must be provided.  If 
an opinion cannot be provided without 
resort to speculation, it must be noted 
in the opinion report, and a rationale 
provided for that conclusion.  The 
examiner must provide an opinion, in 
light of prior examination findings and 
the service and post-service evidence of 
record whether it is at least as likely 
as not (50 percent or greater 
probability) that the Veteran's current 
thoracolumbar spine disorder began 
during the Veteran's period of service 
or is otherwise etiologically related to 
the Veteran's period of service.  For 
purposes of the examination, the 
examiner should accept the Veteran's 
statements of sustaining a back injury 
during service as a result of heavy 
lifting and building bunkers as 
consistent with the circumstances, 
conditions, or hardships of his service. 

2.  Obtain an addendum opinion regarding 
from a VA examiner regarding the sleep 
apnea.  The entire claims file (i.e., 
both the paper claims file and any 
electronic medical records) should be 
made available to and be reviewed by the 
examiner, and it should be confirmed 
that such records were available for 
review.  If the examiner does not have 
access to electronic medical records, 
any such relevant treatment records must 
be printed and associated with the paper 
claims file so they can be available to 
the examiner for review.  If the 
examiner determines an examination is 
required, such an examination shall be 
provided.  The rationale for all 
opinions expressed must be provided.  If 
an opinion cannot be provided without 
resort to speculation, it must be noted 
in the opinion report, and a rationale 
provided for that conclusion.  

The examiner must provide an opinion, in 
light of prior examination findings and 
the service and post-service evidence of 
record whether it is at least as likely 
as not (50 percent or greater 
probability) that the Veteran's claimed 
sleep apnea was aggravated by his 
service-connected PTSD.  If the examiner 
finds that the sleep apnea was 
aggravated by the PTSD, the examiner 
must provided an opinion regarding the 
baseline level of severity of the sleep 
apnea prior to onset of aggravation.  

3.  Review the VA examiner's reports to 
ensure that they are in complete 
compliance with the directives of this 
remand.  If the reports are deficient in 
any manner, the AMC must implement 
corrective procedures.  Stegall v. West, 
11 Vet. App. 268, 271 (1998).  

4.  After completing the above action 
and any other development as may be 
indicated by any response received as a 
consequence of the actions taken in the 
paragraphs above, the claims must be 
readjudicated.  If the claims remain 
denied, a supplemental statement of the 
case must be provided to the Veteran and 
his representative.  After the Veteran 
and his representative have had an 
adequate opportunity to respond, the 
appeal must be returned to the Board for 
appellate review.

The Veteran has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs