Citation Nr: 1331223	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  12-21 813	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for hearing loss.

2.  Whether new and material evidence has been received to reopen a claim for service connection for tinnitus.

3.  Whether new and material evidence has been received to reopen a claim for service connection for concussion.

4.  Entitlement to service connection for rectal cancer, including as due to herbicide exposure.

5.  Entitlement to service connection for bladder cancer, including as due to herbicide exposure and as secondary to rectal cancer.

6.  Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of rectal cancer surgery.

7.  Whether clear and unmistakable error (CUE) was committed in a May 1976 rating decision that failed to award service connection for aneurysm.

8.  Whether CUE was committed in July 2006 and July 2007 rating decisions that failed to award service connection for posttraumatic stress disorder (PTSD).

9.  Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left upper extremity.

10.  Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right upper extremity.

11.  Entitlement to a disability rating higher than 10 percent for peripheral neuropathy of the left lower extremity.

12.  Entitlement to a disability rating higher than 10 percent for peripheral neuropathy of the right lower extremity.

13.  Entitlement to a disability rating higher than 30 percent for diabetic nephropathy with hypertension.

14.  Entitlement to a disability rating higher than 30 percent for diabetes mellitus with erectile dysfunction.


REPRESENTATION

Appellant represented by:	Robert C. Brown, Jr., Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Fleming, Counsel


INTRODUCTION

The Veteran served on active duty from February 1971 to September 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2010, April 2011, August 2012, and February 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  In the July 2010 decision, the RO denied the Veteran's claim for service connection for rectal cancer, as well as his claims for increased ratings for his service-connected peripheral neuropathy of the bilateral upper and lower extremities, diabetic nephropathy with hypertension, and diabetes mellitus with erectile dysfunction.  In the April 2011 rating decision, the RO granted the Veteran service connection for PTSD, effective July 28, 2010.  In the August 2012 rating decision, the RO denied the Veteran's petition to reopen previously denied claims of service connection for hearing loss, tinnitus, and concussion.  In addition, the RO denied the Veteran's claim of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of rectal cancer surgery and found that no CUE was committed in a May 1976 rating decision that failed to award service connection for aneurysm.  Finally, in the February 2013 rating decision, the RO denied the Veteran's claim for service connection for bladder cancer.  

(The decision below addresses the Veteran's claims for service connection for rectal cancer and bladder cancer, as well as his claim for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of rectal cancer surgery.  The Board also addresses the petition to reopen the previously denied claims of service connection for hearing loss, tinnitus, and concussion, as well as the issue of whether CUE was committed in rating decisions that failed to award service connection for aneurysm and for PTSD.  Adjudication of the remaining claims on appeal, as well as the merits of the claims for hearing loss and tinnitus, is deferred pending completion of the development sought in the remand that follows the decision.)

Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  By a June 2007 decision, the RO denied the Veteran's claims for service connection for hearing loss and tinnitus.  The Veteran did not appeal that decision.

2.  Evidence received after the June 2007 denial of the Veteran's claims for hearing loss and tinnitus relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating those underlying claims.

3.  By a July 2007 decision, the RO denied the Veteran's petition to reopen a previously denied claim for service connection for a concussion.  The Veteran did not appeal that decision.

4.  Additional evidence received since the RO's July 2007 decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim, and does not raise a reasonable possibility of substantiating the claim of service connection for a concussion.

5.  Rectal cancer was not demonstrated in service or until many years thereafter; rectal cancer is not attributable to military service.

6.  Bladder cancer was not demonstrated in service or until many years thereafter; bladder cancer is not attributable to military service and is not causally related to or aggravated by a service-connected disability.

7.  In June 2010, the Veteran underwent surgery at a VA medical facility to address rectal cancer; the procedure resulted in a colostomy and the placement of a permanent ostomy pouch.  

8.  The Veteran gave informed consent for the surgical procedure and was adequately informed of the procedure, its risks and complications, and the expected results, including the ostomy pouch.

9.  The Veteran's June 2010 rectal cancer surgery has not been shown to have involved carelessness, negligence, lack of proper skill, or error in judgment on the part of VA health care providers who provided the Veteran's treatment.

10.  The Veteran did not appeal a May 1976 rating decision denying his claim of service connection for skull fracture with concussion.

11.  Based on the evidence of record at the time of the RO's May 1976 rating decision, it was not error for the RO not to have adjudicated the question of service connection for aneurysm at that time.

12.  The Veteran's initial claim for service connection for PTSD was received in September 2005; that claim was denied by the RO in rating decisions dated in July 2006 and July 2007.  By letters dated in July 2006, July 2007, and November 2007, the Veteran was informed of the decision and of his procedural and appellate rights, including a request to clarify whether he wished to appeal the denial; he did not appeal.

13.  The RO's July 2006 and July 2007 decisions represent a reasonable application of extant law to the facts that were then known; there was a tenable basis in the record for the RO to deny service connection for PTSD, and the RO's determination constituted a reasonable exercise of rating judgment.  



CONCLUSIONS OF LAW

1.  A June 2007 rating decision that denied the Veteran's claims for service connection for hearing loss and tinnitus is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2013).

2.  Since the prior final denial of the Veteran's claim for service connection for hearing loss, new and material evidence has been received; hence, the requirements to reopen the claim have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

3.  Since the prior final denial of the Veteran's claim for service connection for tinnitus, new and material evidence has been received; hence, the requirements to reopen the claim have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).

4.  A July 2007 rating decision that denied the Veteran's petition to reopen a previously denied claim for service connection for concussion is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2013).

5.  New and material evidence has not been received since the RO's July 2007 decision denying the Veteran's petition to reopen his previously denied claim for entitlement to service connection for concussion, and the claim of service connection for concussion is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).

6.  The Veteran does not have rectal cancer that is the result of disease or injury incurred in or aggravated by active military service; nor may it be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013).

7.  The Veteran does not have bladder cancer that is the result of disease or injury incurred in or aggravated by active military service, nor may it be presumed to have been incurred therein; bladder cancer was not caused or aggravated by a service connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013).

8.  The criteria for compensation benefits under 38 U.S.C.A. § 1151 for residuals of rectal cancer surgery have not been met.  38 U.S.C.A. §§ 1151, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.361, 17.32 (2013).

9.  The RO did not commit clear and unmistakable error in the May 1976 rating decision in which it did not adjudicate a claim for service connection for aneurysm.  38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. § 3.105(a) (2013).

10.  The RO did not commit clear and unmistakable error in the July 2006 and July 2007 rating decisions in which it denied the Veteran's claim for service connection for PTSD.  38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. § 3.105(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). 

In this case, the Board finds that all notification and development action needed to arrive at a decision on the claims decided herein has been accomplished. 

In this respect, through April 2010, September 2011, November 2011, and November 2012 notice letters, the Veteran received notice of the information and evidence needed to substantiate his claims.  Thereafter, the Veteran was afforded the opportunity to respond.  Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claims. 

The Board also finds that the April 2010, September 2011, November 2011, and November 2012 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)).  In the letters, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies.  The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. 

Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004).  See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession).  These requirements were met by the aforementioned April 2010, September 2011, November 2011, and November 2012 letters.  Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the April 2010, September 2011, and November 2012 letters.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). 

The Board further points out that the VCAA expressly provides that nothing in the Act "shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this title."  38 U.S.C.A. § 5103A(f) (West 2002).  That notwithstanding, the Board finds that all notification and development action needed to arrive at a decision as to the applications to reopen has been accomplished.  Specifically, with regard to the claims to reopen, the AOJ informed the Veteran of the requirements as set forth in 38 C.F.R. § 3.156(a) by a notice letter in September 2011.  The notice letter provided the regulatory definition of "new and material" evidence.  The Veteran was also told of the evidence and information necessary to establishing the underlying claims of entitlement to service connection.  Specifically regarding VA's duty to notify, the Board finds that the September 2011 notice letter to the Veteran apprised him of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.

The September 2011 notice letter also notified the Veteran that, to be considered material, evidence he supplied must pertain to the reason his claims for service connection for hearing loss, tinnitus, and concussion were previously denied.  Further, the September 2011 letter provided the Veteran specific notice of the elements of service connection that were the basis for the prior denial of his claims for service connection for hearing loss, tinnitus, and concussion.  See Kent v. Nicholson, 20 Vet. App. 1 (2006).  The Board thus concludes that "the appellant [was] provided the content-complying notice to which he [was] entitled."  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Consequently, the Board does not find that the VCAA requires remand to the RO.  Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. 

The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claims decided herein.  The Veteran's service treatment records have been associated with the claims file, as have records of private and VA treatment he has received since service.  He has not otherwise alleged that there are any outstanding medical records probative of the claims that need to be obtained.  Additionally, the Veteran was afforded VA examination in July 2012 concerning his claim for entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of rectal cancer surgery, report of which is of record.  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).  As noted below, the Board finds that the examination obtained in this case is sufficient, as it is predicated on consideration of the medical records in the Veteran's claims file, as well as specific examination findings.  The examiner consider the Veteran's statements and provided a rationale for the findings made, relying on and citing to the records reviewed.  

The Board notes that the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when there is: (1) evidence of a current disability; (2) evidence establishing an in-service event, injury or disease, or a disease manifested in accordance with presumptive service connection regulations that would support incurrence or aggravation; (3) an indication that the current disability may be related to the in-service event; and (4) insufficient evidence to decide the case.  The Board is aware that no VA examination was provided to the Veteran in conjunction with his claims for service connection for bladder cancer and rectal cancer but notes that the record does not call for one.  See 38 C.F.R. § 3.159(c)(4) (2013).  In this case, as discussed below, there is simply no suggestion in the record that the Veteran's bladder cancer or rectal cancer is in any way etiologically linked to his service.  As such, VA is not required to afford the Veteran an examination, and therefore, VA has no duty to inform or assist that was unmet.  Duenas v. Principi, 18 Vet. App. 512, 517 (2004).  See also McLendon, 20 Vet. App. at 84-86 (with no indication that a disability or persistent or recurrent symptoms of a disability may be associated with the service or another service-connected disability, claim may be denied where claimant's submissions are insufficient to grant benefits or trigger duty to assist).  In addition, the Board has not requested a VA examination and opinion with regard to the new and material claims, as with a claim to reopen the statutory duty to assist does not arise if new and material evidence has not been presented to reopen the claim.  Anderson v. Brown, 9 Vet. App. 542, 546 (1996).  

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.

Further, with respect to the Veteran's claims based on CUE, the Board notes that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) are not applicable.  See Parker v. Principi, 15 Vet. App. 407, 412 (2002) (citing Livesay v. Principi, 15 Vet. App. 165 (2001)).  In Livesay, the Court noted that allegations of CUE are not conventional appeals and are fundamentally different from other kinds of action in the VA adjudicative process.  Because the Veteran is not pursuing a claim for benefits, but rather is collaterally attacking a prior final decision, the duties to notify and assist as set forth in the VCAA are not applicable.  15 Vet. App. at 178-79.

II.  Analysis

A.  Petitions to Reopen

Under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Regarding petitions to reopen filed on or after August 29, 2001, Title 38 Code of Federal Regulations, Section 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2013).

During the pendency of the Veteran's appeal, VA revised 38 C.F.R. § 3.156.  See 71 Fed. Reg. 52,455-57 (Sept. 6, 2006).  The amended regulation became effective October 6, 2006.  The Board notes that none of the revisions, which relate to receipt of additional service department records, affects the Veteran's pending claims.

In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is, in fact, new.  This analysis is undertaken by comparing newly received evidence with the evidence previously of record.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996).  Here, as indicated above, the last final denial pertinent to the hearing loss and tinnitus claims was the June 2007 rating decision; the last final denial pertinent to the concussion claim was in July 2007.  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

The Veteran asserts that he has hearing loss and tinnitus that are related to his active military service.  The Veteran also claims that he has residuals of concussion that developed secondary to a motor vehicle accident in which he was involved while on active duty.  As a result, the Veteran contends that service connection is warranted.

In a May 1976 rating decision, the RO denied the Veteran's claim for service connection for concussion.  In July 2007, the RO denied the Veteran's petition to reopen that claim, finding that no new and material evidence had been submitted.  Similarly, in a June 2007 rating decision, the RO denied the Veteran's claims of service connection for hearing loss and tinnitus.  As the Veteran did not appeal those decisions, they are final based on the evidence then of record.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  Thereafter, in May 2011, the Veteran sought to reopen his claims of service connection for hearing loss, tinnitus, and concussion.

Evidence of record in 2007 concerning the Veteran's claimed hearing loss and tinnitus included service treatment records showing that the Veteran had some high-frequency hearing loss when he entered active duty.  In particular, the Veteran's January 1971 entry examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0 (15)
0 (10)
-10 (0)
---
45 (50)
LEFT
0 (15)
-10 (0)
-5 (5)
---
15 (20)

(NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.)

The Veteran's September 1975 separation examination, measured in ANSI standards, revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
---
45
LEFT
20
20
20
---
25

In addition, of record in 2007 was a private audiological evaluation conducted in 2006 that reflected a diagnosis of both hearing loss and tinnitus.  

Evidence of record in 2007 concerning the Veteran's claim for concussion included the Veteran's service treatment records, which showed that he had sustained a concussion in a February 1974 motor vehicle accident, which he attributed at the time to the failure of his brakes.  Although this accident occurred in service, also of record in 2007 was an administrative decision dated in 1976 in which VA concluded that the motor vehicle accident was a direct result of the Veteran's willful misconduct and that any injuries sustained as a result are not subject to service connection.

Evidence added to the record since the RO's 2007 rating decisions consist entirely of the Veteran's contentions, including in testimony before the undersigned Veterans Law Judge, that he has experienced hearing loss and tinnitus since service, particularly due to multiple instances of acoustic trauma to which he contends he was exposed while stationed in the Republic of Vietnam.  In addition, the Veteran has contended that his in-service motor vehicle accident was due not to willful misconduct but to the failure of his brakes.

Regarding the Veteran's hearing loss and tinnitus claims, the Board finds that the evidence, in the form of the Veteran's contentions at his August 2013 hearing that he has experienced hearing loss and tinnitus continuously since service, is "new" in the sense that it was not previously considered by agency decision makers.  The Board also finds that the newly submitted evidence is not cumulative or duplicative of evidence previously considered and is thus "material" for purposes of reopening the Veteran's claim.  In this regard, the Board notes that, at the time of the June 2007 rating decision, the RO denied the Veteran's claim for service connection in part because it stated that the Veteran's hearing was normal in service and that there was no evidence that any current hearing loss or tinnitus was linked to service.  However, as noted above, the Veteran did demonstrate hearing loss for VA purposes both at his entrance and separation medical examinations.  Further, prior to the receipt of the above-identified evidence, the Veteran had not made any contention that he had first experienced hearing loss and tinnitus in service that had continued to the present.  Newly submitted evidence, however, includes his contention that he has continuously experienced hearing loss that began in service and has continued since that time.  Because it provides evidence suggesting an etiological link between the Veteran's service and his current hearing loss and tinnitus, this statement adds to the record in a way that it should be considered new and material.

The Board finds, therefore, that the identified evidence relates to an unestablished fact necessary to substantiate the claims for hearing loss and tinnitus and raises a reasonable possibility of substantiating the claims.  38 C.F.R. § 3.156(a) (2013).  Accordingly, new and material evidence has been submitted, and the criteria for reopening the previously denied claims for service connection for hearing loss and tinnitus have been met. 

However, after a review of the evidence mentioned above, the Board finds that new and material evidence relating to the Veteran's claim for service connection for concussion has not been received, and that claim may not be reopened.  The evidence is new in that it was not previously before agency decision makers.  However, none of this evidence is material for purposes of reopening the claim for service connection for concussion.  Essentially, the new medical evidence does not suggest in a manner not previously shown that the Veteran's concussion was not due to willful misconduct.  

As relates to the Veteran's claimed concussion, as noted above, the evidence previously of record showed that the Veteran's concussion was attributable to a motor vehicle accident that occurred in service.  Evidence received since the July 2007 denial includes only the Veteran's contention that the accident was due not to his misconduct but to a failure of his brakes.  However, this information does not tend to prove the Veteran's claim in a manner different from what was already shown in July 2007.  In that connection, the Board acknowledges that the Veteran's claim was initially denied because the motor vehicle accident that led to his concussion was found to be due to his own willful misconduct.  The Veteran has complained that the motor vehicle accident in question was caused by a brake failure, but he made that contention in 1976 at the time of the initial administrative decision that determined misconduct took place.  The fact remains that the Veteran was found to have concussion due to a motor vehicle accident that resulted from willful misconduct, and he has submitted no new evidence to contradict such a finding.  Consequently, the Board finds that the new evidence differs from what was previously of record, but substantively shows the same thing.  In other words, with respect to what is required to show a relationship to military service, it is cumulative of what was previously known.

The Board thus concludes that the evidence received since the July 2007 rating decision is not new and material.  As noted in 38 C.F.R. § 3.156(a), 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.  In this case, the evidence added to the record since the prior denials does not provide any new evidence indicating that the Veteran currently suffers from concussion that is related to his service but not to willful misconduct.  Thus, none of the evidence raises a reasonable possibility of substantiating the Veteran's claim of service connection.

The Board has also considered the assertions and testimony of the Veteran and his representative that were made in support of his claim, but emphasizes that he is not shown to be other than a layperson without the appropriate medical training or expertise to render an opinion on a medical matter such as the specific diagnosis of a disorder such as concussion.  In sum, although the Veteran asserts that he has concussion that can be attributed to service, these were his contentions previously, and the record does not establish that he has the medical training necessary to offer competent opinions on matters of medical diagnosis.  As such, his statements do not amount to new and material evidence.  As noted in 38 C.F.R. § 3.156(a), 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. 

Under the circumstances described above, the Board concludes that new and material evidence relating to the Veteran's claim for service connection for concussion has not been received; hence, the requirements to reopen the claim for service connection for concussion have not been met, and the appeal must be denied.  (As new and material evidence to reopen this finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).)

B.  Claims for Service Connection

Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service.  38 U.S.C.A. § 1116(f).  It is provided that the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.308(a)(6)(ii).  These diseases include chloracne or other acneform disease consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Parkinson' disease, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), AL amyloidosis, and soft-tissue sarcoma.  38 C.F.R. § 3.309(e) (2013).

Regarding diagnosis of the Veteran's claimed disabilities, a review of his service treatment records reflects that the record is silent as to diagnoses of or treatment for rectal cancer or bladder cancer.  (At the Veteran's separation, a report of medical history, prepared in September 1975, shows that he had a normal genitourinary system, with no abnormalities noted and no complaints of any such problems on his September 1975 separation report of medical history.)  Relevant post-service medical evidence consists of records of treatment the Veteran has received from both private and VA treatment providers.  Post-service medical records reflect that the Veteran was diagnosed with rectal cancer in 2010 and with bladder cancer in 2012.  Records from the Veteran's ongoing treatment with private and VA treatment providers reflect that he has been seen on an ongoing basis for follow-up treatment of both cancers.  The Veteran has also submitted multiple statements to VA in support of his claims and has testified before the undersigned Veterans Law Judge.  He has contended on many occasions, including at his August 2013 hearing, that he believes his current rectal cancer and bladder cancer are due to his in-service exposure to herbicides.  In the alternative, he has contended that he developed bladder cancer secondary to his earlier-diagnosed rectal cancer.  

The Veteran's service personnel records reflect that the he served in Vietnam during the applicable time period, and thus he is presumed to have been exposed to herbicide agents.  38 U.S.C.A. § 1116(f).  However, the Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for other disabilities, including rectal and bladder cancer.  Thus, despite the Veteran's presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is not for application, as he does not have a presumptive disability.  For these reasons, the Board finds that the presumptive regulations regarding exposure to Agent Orange are not applicable in this case.  See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e).  Thus, presumptive service connection for rectal cancer and bladder cancer due to Agent Orange exposure is not warranted.  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309.

Notwithstanding the foregoing, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  The rationale employed in Combee also applies to claims based on exposure to Agent Orange.  Brock v. Brown, 10 Vet. App. 155 (1997).

Regarding establishing service connection based on direct exposure to herbicides, the Veteran contends, as noted above, that his rectal cancer and bladder cancer are the result of exposure to herbicides while serving in Vietnam during his period of active duty.  Here, however, relevant post-service evidence reflects that the Veteran was first diagnosed with rectal cancer in 2010, thirty-five years after his separation from active duty.  He underwent surgery in June 2010 to address the cancer.  Similarly, he was diagnosed with bladder cancer in 2012 and has continued to receive treatment for both cancers since the initial diagnoses.  No opinion relating the disorder to service is present in the record, however, and the Veteran has not submitted any competent medical evidence relating his rectal cancer or bladder cancer to service, including to his conceded in-service herbicide exposure.

The Board has considered the evidence of record and finds that there is no competent evidence medically relating rectal cancer or bladder cancer to military service, including to any in-service herbicide exposure.  Absent a medical opinion in the record of a relationship to military service in general, or specifically to exposure to herbicide agents during military service, the Veteran's claim for service connection for rectal cancer and bladder cancer must be denied on a direct basis.  Further, in this case, the Board notes that the Veteran has not contended that he first experienced symptoms of rectal cancer or bladder cancer in service; to the contrary, medical records submitted by the Veteran establish that he was not diagnosed with these cancers until more than thirty years after his separation from active duty.  The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service).  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  However, he is not competent to say that any such symptoms were a result of or worsened by any incident in service or were of a chronic nature to which any current disability is attributable.

The Board notes that it may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  Notwithstanding that fact, the lack of contemporaneous medical records is something that the Board can consider and weigh against a Veteran's lay evidence.  Id.  Importantly, in this case, the Veteran has not contended that he has suffered from rectal cancer or bladder cancer since service.  Further, there is no medical evidence demonstrating that, before the 2010 treatment notes documenting findings of and treatments for rectal cancer, or the 2012 diagnosis of bladder cancer, the Veteran had complained of any such problem to any medical professional at any time since his separation from service.  

The Board concedes that the Veteran has been treated for both rectal cancer and bladder cancer during the appeal period, but none of his treatment providers has provided an opinion that any such disability is related to military service.  Thus, in this case, when weighing the evidence of record, the Board finds compelling the lack of any evidence linking the Veteran's rectal cancer or bladder cancer to service.  Furthermore, as a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a complex medical matter, such the relationship between his current rectal or bladder cancer and military service.  See Bostain, 11 Vet. App. at 127.

Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claims for service connection for rectal cancer and bladder cancer on a direct basis.  Although the Veteran asserts that his rectal cancer and bladder cancer can be attributed to his time in service, and particularly exposure to herbicides, the record does not establish that he has the medical training necessary to offer competent opinions on such complex matters of medical etiology.  See Bostain, 11 Vet. App. at 127.  The Board thus concludes that a preponderance of the evidence is against the claims.

Turning to the Veteran's claim of secondary service connection, as discussed above, the Board finds that entitlement to service connection for rectal cancer is not warranted.  Thus, as a matter of law, the Veteran's claim for service connection for bladder cancer as secondary to rectal cancer must fail.  Because the condition to which the Veteran claims his bladder cancer is secondary has not been service connected, the claim for secondary service connection must also fail.  See 38 C.F.R. § 3.310.  For this reason, the Veteran's claim for secondary service connection must be denied as without legal merit.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim based on a lack of legal merit).

C.  § 1151 Claim

The Veteran filed his claim for compensation benefits under 38 U.S.C.A. § 1151 in May 2011.  

With respect to claims filed on or after October 1, 1997, 38 U.S.C.A. § 1151 provides in pertinent part that compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death was service connected.  See VAOPGCPREC 40-97 (Dec. 31, 1997).  For purposes of this section, a disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and the proximate cause of the disability or death was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable.  38 U.S.C.A. § 1151 (West 2002 & Supp. 2013).  

The Board notes that regulations to implement the current version of 38 U.S.C.A. § 1151 were promulgated in August 2004.  See 38 C.F.R. § 3.361 (2013).  The effective date of the change was September 2, 2004.  (See 38 C.F.R. § 3.358 pertaining to claims for compensation for disability or death from hospitalization, or medical/surgical treatment filed prior to October 1, 1997).  A review of 38 C.F.R. § 3.361 reflects that in pertinent part, the regulation is a restatement of the criteria of 38 U.S.C.A. § 1151.  In this case, the Veteran has been provided the statutory provisions for 38 U.S.C.A. § 1151.  He has also been provided with the pertinent provisions of 38 C.F.R. § 3.361.  As such, the Board finds that the Veteran has been properly notified of the statutory and regulatory provisions pertaining to his claim.  Furthermore, in light of arguments advanced in support of the claim on appeal, the Board finds that the Veteran and his attorney have demonstrated knowledge of the statute and regulation.  

With respect to 38 C.F.R. § 3.361, to determine whether additional disability exists within the meaning of § 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed.  Each body part or system involved is considered separately.  38 C.F.R. § 3.361(b).

To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death.  Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c)(1).  

Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or progress.  38 C.F.R. § 3.361(c)(2).  Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination.  38 C.F.R. § 3.361(c)(3).

The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.  38 C.F.R. § 3.361(d).  To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death (see 38 C.F.R. § 3.361(c)); and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's-or, in appropriate cases, the Veteran's representative's-informed consent.  38 C.F.R. § 3.361(d)(1).  

Finally, the determination of whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen.  The event does not have to be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided.  38 C.F.R. § 3.361(d)(2).  The regulation further provides that, in determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. §§ 17.32.  38 C.F.R. § 3.361(d)(2).

The provisions of 38 C.F.R. § 17.32, Informed Consent, a section under the heading of Protection of Patient Rights, are extensive.  In particular, under 38 C.F.R. § 17.32(b), all patient care furnished under Title 38 of the United States Code shall be carried out only with the full and informed consent of the patient or, in appropriate cases, a representative thereof.  In order to give informed consent, the patient must have decision-making capacity and be able to communicate decisions concerning health care.  If the patient lacks decision-making capacity or has been declared incompetent, consent must be obtained from the patient's surrogate.  Practitioners may provide necessary medical care in emergency situations without the patient's or surrogate's express consent when immediate medical care is necessary to preserve life or prevent serious impairment of the health of the patient or others and the patient is unable to consent and the practitioner determines that the patient has no surrogate or that waiting to obtain consent from the patient's surrogate would increase the hazard to the life or health of the patient or others.  In such circumstances, consent is implied.  

Under 38 C.F.R. § 17.32(c), informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment.  The practitioner who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment must explain in language understandable to the patient or surrogate the nature of the proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done.  The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion.  The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox.  The patient or surrogate may withhold or revoke his or her consent at any time.  

The consent form will be witnessed, will be filed in the patient's medical records, and will be valid for a period of 30 calendar days.  38 C.F.R. § 17.32(d).  Finally, under 38 C.F.R. § 17.32(g)(1), special consent procedures are required in situations where the Veteran is undergoing unusual or an extremely hazardous treatment or procedure, e.g., that which might result in irreversible brain damage or sterilization.  This includes having the Veteran's signature witnessed by someone not affiliated with the VA health care facility.  

In this case, the Veteran has advanced a number of arguments regarding the way he was handled following his initial diagnosis of rectal cancer at the Oklahoma City VA Medical Center (VAMC) in January 2010.  In particular, the Veteran has argued that he was not properly informed of the risks regarding the surgical procedure he underwent in June 2010 and that the applicable informed consent procedure was not followed under 38 C.F.R. § 17.32.  The Veteran has specifically contended that he was informed only that he was undergoing surgery to have "growths" removed and was not told that the surgery to extract the cancer would leave him with a colostomy pouch.  Furthermore, the Veteran contends that the surgery itself was inadequate, as he has required multiple additional surgeries and revisions to continue to treat the problem, and that his operating physician proceeded with the invasive procedure against the advice of other physicians consulting on his case.  

Regarding the issue of informed consent, the Board notes initially that under 38 C.F.R. § 3.361(d)(1)(ii), to determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32.  Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent.  

The Board first turns to an analysis of whether the consent obtained from the Veteran for the June 2010 surgical procedure satisfied the requirements set forth in 38 C.F.R. § 17.32(c).  Upon review of the evidence of record, the Board finds that there is no indication that the Veteran's consent to the surgery was not "informed" consent in accordance with 38 C.F.R. § 17.32.  In this case, the medical evidence reflects that the Veteran had decision-making capacity and was able to communicate decisions concerning his health care.  A review of the medical consent form pertaining to the rectal cancer surgery reflects that it was signed by the Veteran on June 1, 2010, the day the surgery was performed, and that his signature was witnessed by his wife.  In particular, the consent form notes that the Veteran was advised of the risks, alternatives, and benefits of the surgery, and all those potential risks were identified.  In addition, it was noted that the procedure involved the following:

"Abdominal Perineal Resection/Partial colectomy
end ostomy placement
possible central venous catheter placement."

In addition, notes from April and May 2010 reflect that the Veteran had multiple appointments with a variety of care providers to discuss the planned surgery.  In particular, at an April 2010 surgery consult, the Veteran was noted to have been informed of the procedure as well as all risks and benefits.  At a follow-up consultation in May 2010, the Veteran met with an "ostomy nurse," who indicated in the treatment note that the specific reason for the visit was to mark the Veteran's post-operative "stoma site."  In particular, the Veteran was shown an example of an ostomy pouch and was encouraged to ask questions.  He was noted to be "able to verbalize basic information regarding anticipated surgery and colostomy diversion" and was given a review of the anatomy and physiology of the surgery and the planned colostomy, including illustrations of the procedure.  Later in May 2010 the Veteran was seen for "preop marking" of the specific site on his body where the colostomy would be performed.

Although the Veteran has reported that he does not remember being told that his surgery would result in a colostomy, he has not contended that it was not his signature on the consent form or that he was coerced into signing the consent form.  As noted above, the medical consent form was witnessed by the Veteran's wife.  Additionally, the June 1, 2010, informed consent form notes that the Veteran was advised of the planned procedure as well as the risks, benefits, and alternatives.  As noted above, the form specifically lists the components of the planned procedure, including both a partial colectomy and the placement of an ostomy.  The Veteran was noted to have consented to the procedure.  

Here, the Board finds compelling the consent form signed by the Veteran listing "partial colectomy" and "end ostomy placement" as specific, planned components of surgery, as well as the VAMC medical records reflecting the multiple pre-surgery visits the Veteran had with a variety of medical professionals, up to and including a meeting with an ostomy nurse who not only showed the Veteran a physical example of an ostomy pouch but provided him with illustrations depicting the procedure, encouraged him to ask questions about the surgery, and physically marked on his body with indelible marker the actual location of the planned ostomy.  The Board thus finds that the Veteran's testimony in August 2013, in which he stated that he had no prior knowledge of the scope of the planned surgery or the intent to perform a colostomy and install an ostomy pouch to be manifestly not credible.  Regardless of the Veteran's statements, however, his signature on the form and the voluminous records documenting the thorough preparation and discussion his care providers engaged in with him regarding the procedure provide overwhelming evidence that the Veteran was informed of the "nature of [the] proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done."  38 C.F.R. § 17.32(c).

Thus, the Board finds that the evidence clearly demonstrates that the VA health care providers complied with the general informed consent procedures set forth in 38 C.F.R. § 17.32; that the Veteran was on notice of the actual scope of the procedure to be performed, including in particular the installation of a colostomy following the partial resection of his colon; and that he freely and without coercion consented to the medical procedure.  

Otherwise, as to the evidence of record, the Veteran's claims file was reviewed in July 2012 by a VA surgeon in conjunction with the instant claim.  In her report, the physician noted that there are two main types of procedure that can address rectal cancer.  However, the location and size of the Veteran's "low lying" rectal cancer led to the decision that a surgery that would preserve his anal sphincter was not practicable without either "leaving residual disease and/or obtaining inadequate surgical margins."  Thus, the examiner concluded, the Veteran's surgeons determined that an abdominal perineal resection was the safer option to prevent further recurrence of disease.  The examiner noted that an abdominal perineal resection by definition "leav[es] the patient with a permanent ostomy."  The examiner reviewed the Veteran's treatment record and stated that she concurred with the decision to perform the abdominal perineal resection and noted that, had a less invasive surgery been performed, the Veteran "likely would have been incontinent of feces ... which would have resulted in a poorer quality of life and patient disability."  The examiner found the treatment to have been timely and to have been free of negligence, lack of skill, or other fault by VA personnel.  Further, she noted that there is simply no evidence in the record to support the Veteran's contentions that the surgery was performed over the objections of some of his doctors, noting that the treatment records document that he was told from the beginning that the planned treatment was an abdominal perineal resection that would result in an ostomy pouch.  

In this case, the Board finds that the weight of the competent medical evidence does not reflect that any results of the Veteran's June 2010 surgery were the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care; nor were any results an event not reasonably foreseeable.  The Board finds persuasive that in none of the medical opinions of record, including the July 2012 VA opinion, was the standard of care identified as not having been met.  38 C.F.R. § 3.361(d)(1)(i).  To the contrary, the VA surgeon found no evidence that there was an untimely diagnosis or treatment of the Veteran's rectal cancer.  She also opined that the surgery did not result in any carelessness, negligence, lack of skill, error in judgment or fault of the Oklahoma City VAMC.  

Although the Board does not doubt the sincerity of the Veteran's beliefs regarding his claim on appeal, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a complex medical matter such as the diagnosis and treatment of rectal cancer.  See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  As such, the Veteran's assertions alone, while considered by the Board, cannot provide a basis for a grant of compensation under the provisions of 38 U.S.C.A. § 1151.  

Thus, under these circumstances, the claims for compensation under the provisions of 38 U.S.C.A. § 1151 must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

D.  Clear and Unmistakable Evidence Claims

By a rating decision entered on May 27, 1976, the RO denied service connection for Osgood-Schlatter disease of the right knee; broken ribs; injured kidney; injured chest; burns of the right arm, back, and shoulder; skull fracture; concussion; and ear injury.  A letter of notice sent to the Veteran dated June 3, 1976, shows that he was notified of the decision as to denial of service connection and informed that if he believed the decision was incorrect, he could initiate an appeal to the Board by filing a notice of disagreement within one year from the date of the notice letter.  The Veteran did not initiate an appeal within one year.  Consequently, the RO's May 1976 rating decision became final.  38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 19.118, 19.153 (1976).

By a rating decision entered on July 3, 2006, the RO denied the Veteran's claim for service connection for PTSD.  A notice letter sent to the Veteran dated July 21, 2006, shows that he was notified of the decision as to the service connection claim, but if he believed the decision was not correct, he could initiate an appeal to the Board by filing a notice of disagreement within one year from the date of the notice letter.  He responded by submitting a new claim for service connection for PTSD in October 2006, which was again denied by the RO via a July 2007 rating decision, which was sent to him along with a notice letter informing him of his right to appeal.  In response to that denial, the Veteran submitted a letter stating that he believed he was entitled to more benefits from VA.  The letter referenced his in-service motor vehicle accident but did not reference his claim for PTSD and indeed did not specify any disagreement with any prior rating decision.  The RO responded to the letter with a request in November 2007 for the Veteran to clarify if he in fact wished to file a notice of disagreement with any decision; he did not respond to that letter.  Consequently, the RO's July 2006 and July 2007 rating decisions became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302, 20.1103 (2006).  The Veteran contends that clear and unmistakable error was committed in the July 2006 and July 2007 prior final RO decisions.

The Court has addressed the question of determining when there is CUE present in a prior decision.  In Russell v. Principi, 3 Vet. App. 310 (1992), the Court propounded a three-pronged test to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort that, had it not been made, the outcome would have been manifestly changed at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  Id. at 313- 14; see also Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999).  The Court has also stated that CUE is a type of error in which reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.  Russell, 3 Vet. App. at 313-14.

In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error.  Id. at 43.  The Court noted that CUE is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Id.  The Court further indicated that in order to raise a valid claim of CUE, the veteran must specifically indicate what the error is and that unless it is the type of error that, if true, would be CUE on its face, the veteran must provide persuasive reasons why the decision would have been manifestly different but for the error.  Id. at 44.  The Court stated that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger.  Id.

Examples of situations that are not CUE are a changed diagnosis (a new medical diagnosis that "corrects" an earlier diagnosis considered in a decision), the VA's failure to fulfill the duty to assist, and/or evaluation of evidence (a disagreement as to how the facts were weighed or evaluated).  See, e.g., 38 C.F.R. § 20.1403(d) (2013).  The Court has held that allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error.  Similarly, broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error cannot constitute a valid claim of CUE.  Fugo, 6 Vet. App. at 44.  In addition, the Court has held that VA's breach of its duty to assist cannot form a basis for a claim of CUE.  Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) (VA's breach of duty to assist caused incomplete record but not incorrect record).

With respect to claims based on CUE, the Board notes that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) are not applicable.  See Parker v. Principi, 15 Vet. App. 407, 412 (2002) (citing Livesay v. Principi, 15 Vet. App. 165 (2001)).  In Livesay, the Court noted that allegations of CUE are not conventional appeals and are fundamentally different from other kinds of action in the VA adjudicative process.  Because the Veteran is not pursuing a claim for benefits, but rather is collaterally attacking prior final decisions, the duties to notify and assist as set forth in the VCAA are not applicable.  15 Vet. App. at 178-79.

i.  May 1976 Decision

In regard to the rating decision issued on May 27, 1976, the Veteran contends that the RO should have granted service connection at that time for his aneurysm.  In particular, the Veteran appears to contend that in that initial claim, the RO committed clear and unmistakable error by failing to adjudicate-and grant-a claim for service connection for aneurysm, despite his failing to claim service connection for aneurysm directly.  In the Veteran's words, as stated on his May 2011 claim, "My service medical records clearly indicate that I suffered a traumatic brain injury on February 4, 1974, that required hospitalization.  That traumatic brain injury was the basis for my aneurism claim, but the regional office never rated me for that injury."  

Evidence in the record at the time of the RO's May 1976 decision included the Veteran's service treatment records, a VA examination conducted in April 1976, and records from the Veteran's private treatment following his in-service motor vehicle accident.  At the April 1976 VA examination, multiple disorders were diagnosed, but no mention was made of an aneurysm, a concussion, or a traumatic brain injury.  Report of medical treatment the Veteran obtained following the in-service accident, which occurred in February 1974, reflects that the Veteran was treated for a skull fracture and concussion, as well as lung contusion, trauma of the genitourinary tract, and burns and abrasions.  Further, treatment records reflect that during an arteriogram conducted to assess the extent of the Veteran's injuries, his treating physician noted that the Veteran had a left carotid aneurysm, which the physician opined was "congenital ... rather than related to the patient's trauma."

The May 1976 decision noted that the February 1976 application was an original claim.  The issues were described as service connection for "broken rib; injured kidney; injured chest; burns, right arm, back and shoulder; skull fracture; concussion and ear injury."  The body of the decision summarized the facts contained in the Veteran's service treatment records, the April 1976 VA examination report, and the February 1974 treatment records following the motor vehicle accident.  At the end of the decision, no disabilities were found to be service-connected.  Although the private February 1974 treatment records following the motor vehicle accident were discussed in the text of the rating decision, there was no indication that the RO denied, adjudicated, or considered that it had a claim before it of service connection for aneurysm.  As noted previously, the Veteran was notified of the May 1976 decision by a letter dated the next month.  

In consideration of the information and evidence existing at the time of the May 1976 rating decision, the Board does not find CUE in the decision.  Error was not committed when the RO failed to address the question of service connection for aneurysm.  This is so because there was no claim for aneurysm, formal or informal, and there is no clear evidence that the RO believed there was such a claim.  Despite the Veteran's contentions to the contrary, the only claims before the RO were claims of service connection for broken ribs; injured kidney; injured chest; burns of the right arm, back, and shoulder; skull fracture; concussion; and ear injury.  Prior to the May 1976 decision, the Veteran filed one document-the February 1976 application for compensation benefits.  He only listed the above-identified claims on the form.  Nothing pertaining to aneurysm was written on the form.  The Board acknowledges that the February 1974 hospital treatment records reference aneurysm.  However, this information does not show that any claim other than the ones listed above was filed.  There is thus, as the Court noted, no evidence that a formal claim for service connection for aneurysm was filed in 1976.  

The Board further finds that there was no informal claim for service connection for aneurysm, and no evidence that the RO should have recognized one.  In so finding, the Board recognizes that the evidence then available did reference the presence of a left carotid aneurysm.  However, in order to find that there was CUE in the RO's failure to adjudicate such a claim in its 1976 decision, the evidence must be more than suggestive, even strongly so; it must be clear and unmistakable that VA had a claim before it or thought that it did.  In this case, the Board cannot find the evidence of such to be undebatable.  To the contrary, the Veteran made no mention of an aneurysm at any point during the 1976 claim process, and the sole mention of aneurysm in any of his medical records, VA or private, of record at the time indicated that the aneurysm was most likely congenital in nature "rather than related to the patient's trauma."  To interpret that statement as a claim for service connection for aneurysm would stretch the bounds of reason.

In short, the Board concludes that the May 1976 rating decision constituted a reasonable exercise of rating judgment under the law as it then existed.  That the Veteran would have the Board weigh the evidence differently, or even if the Board would have decided differently, does not create a basis for finding CUE.  The May 1976 judgment will not be disturbed now by finding CUE.  The Board notes that the determinative question in this case is not whether it would have been reasonable for an adjudicator to have granted the Veteran service connection for aneurysm in May 1976.  Rather, the question at this stage is whether, given the law extant at the time, and the evidence then of record, it is absolutely clear that a different result should have ensued.  Here, for the reasons stated above, the Board must answer that question in the negative. 

ii.  July 2006 and July 2007 Decisions

In regards to the rating decisions issued in July 2006 and July 2007, the Veteran contends that the RO should have granted service connection at that time for his PTSD.  He argues, in essence, that the RO erred by failing to consider that he was a "combat veteran who was wounded by an enemy rocket attack" and that his treatment records from that injury should have been considered by the RO and used to grant PTSD.  The Veteran contends that the RO "overlook[ed]" these records, which he argues is CUE.  The Veteran also contends that the positive opinion offered by his private psychiatrist in 2006 should have warranted the award of PTSD and, alternately, that the letter submitted by the Veteran claiming his entitlement to additional monetary benefits was a valid notice of disagreement and thus that his claim had been pending since the initial filing in September 2005.  

The laws and regulations in effect at the time of the July 2006 and July 2007 rating decisions provided that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 C.F.R. § 3.303 (2006).  Service connection for PTSD required (1) a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f) (2006).  

Evidence in the record at the time of the RO's July 2006 and July 2007 decisions included the Veteran's service treatment records and records of post-service VA treatment.  Review of the Veteran's service treatment records reflects that they were silent as to any complaints of treatment for psychiatric problems during service; he was found to have a normal psychiatric system at his September 1975 medical examination, and he responded "No" when asked if he experienced any psychiatric symptomatology at his September 1975 separation report of medical history.  Included in the record is a note that the Veteran injured his knees falling down the stairs; no line-of-duty determination was made at that time, and the Veteran's service records did not reflect any indicia of combat.

In addition, of record was a June 2000 letter from a private psychiatrist in which the Veteran was note to have experienced a "depressive episode."  However, at that time the Veteran denied "any symptoms of Post-Traumatic Stress Disorder."  Further psychological evaluation conducted in September and December 2006 reflect that the private psychologist who conducted the evaluations diagnosed the Veteran with PTSD, which he attributed to the "traumatic stressors" the Veteran reported having experienced during service in Vietnam.  

After review of the relevant evidence, applicable regulations, the Veteran's contentions, and his representative's arguments, the Board does not find that there was CUE in the July 2006 or July 2007 rating decision that failed to grant the Veteran service connection for PTSD.  

With respect to the Veteran's first argument, that the RO committed CUE by failing to consider service treatment records concerning his knee injury, the Board notes as an initial matter that the regulations are clear:  a failure of VA to fulfill the duty to assist does not amount to CUE.  38 C.F.R. § 20.4103(d).  In addition, the Court has clarified that VA's breach of its duty to assist cannot form a basis for a claim of CUE.  Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) (holding that VA's breach of duty to assist caused incomplete record but not incorrect record).  Thus, the Board finds that any failure by the RO to obtain records of the Veteran's in-service knee injury cannot be the basis for a valid claim of CUE.

Moreover, CUE does not include the otherwise correct application of a statute or regulation where, subsequent to the decision challenged, there has been a change in the interpretation of the statute or regulation.  38 C.F.R. § 20.1403(e).  In this case, the Board points out that the Veteran's claim for service connection for PTSD was granted under the new, more liberal regulation governing service connection for PTSD; this change did not go into effect until 2008, well after even the second of the rating decisions in which the Veteran has alleged CUE was issued.  Thus, it is not undebatable that, even had the records been associated with the claims file, the outcome would have been different at the time of the July 2006 and July 2007 rating decisions.  The records themselves establish only that the Veteran injured his knees in service; they do not clarify that that injury occurred during a combat situation or was the type of stressful situation that could give rise to later PTSD.  The Board further notes that, under 38 C.F.R. § 3.156(c ), the RO could have reconsidered the claim once the service records were associated with the file.  However, as discussed above, the records in question-even if they had been in the file at the time of the 2006 and 2007 decisions-do not undebatably establish that the outcome would have been different. 

Turning to the Veteran's second argument, that the RO should have granted his claim based on the 2006 private treatment records diagnosing PTSD related to service, the Board finds that the Veteran's contention in this regard amounts to a claim that medical evidence at the time of the RO's decision establishes that his PTSD was due to service.  He is, in essence, arguing that the RO failed to give proper weight to certain evidence, which, if weighed or considered differently, would have resulted in an award of service connection.  The crux of the Veteran's claim is that the RO failed to assign sufficient weight to the 2006 diagnosis of PTSD assigned by a private psychologist, who linked the diagnosis to the Veteran's claimed in-service stressors.

The Board has considered the Veteran's arguments but finds that, as to his second contention, the Veteran has failed to cite to specific errors of fact or law in the July 2006 and July 2007 RO decisions.  Rather, the Veteran has merely argued that the RO committed error in its consideration of evidence of record at the time of the prior decisions.  As held in Fugo, supra, non-specific allegations of failure to follow regulations or failure to apply the benefit-of-the-doubt or any other general, non-specific allegations of error, such as failure in the duty to assist, are insufficient to satisfy the motion requirement.  As noted above, the very evidence identified by the Veteran in his motion was in fact considered by the RO in the July 2007 decision.  Any argument that the evidence of record at the time of the July 2006 and July 2007 decisions supported a finding that the Veteran's PTSD disability was related to service is no more than a disagreement as to how the evidence was viewed by the RO.  This is not a case where the RO did not have the facts before it; it is a disagreement with how the RO viewed the facts.  Such an argument cannot constitute clear and unmistakable error. 

With respect to the Veteran's third contention, that his undated letter submitted following the July 2007 RO decision constituted a valid notice of disagreement as to the denial of service connection for PTSD contained therein, the Board finds that argument unavailing.  In this case, the Veteran did not clarify that he was disagreeing with any particular rating decision in the undated statement, nor did he indicate at any point in the correspondence that he was disagreeing with any adjudication of his PTSD claim in particular.  See 38 C.F.R. § 20.201.  Further, the RO responded to this correspondence with a letter in November 2007 specifically informing the Veteran that his statement would not be construed as a notice of disagreement unless he clarified what decisions he was disagreeing with, if he indeed wished to file a notice of disagreement.  The Veteran did not respond to this correspondence.  Thus, the Board cannot conclude that the undated statement submitted by the Veteran subsequent to the July 2007 rating decision was a valid notice of disagreement with the July 2006 or July 2007 rating decision denying service connection for PTSD.  It was thus not CUE for the RO not to treat it as such, and the Veteran's claim must fail on these grounds.  

In short, the Board concludes that the July 2006 and July 2007 rating decisions constituted a reasonable exercise of rating judgment under the law as it then existed.  That the Veteran would have the Board weigh the evidence differently, or even if the Board would have decided differently, does not create a basis for finding CUE.  The July 2006 and July 2007 judgments will not be disturbed now by finding CUE.  The Board notes that the determinative question in this case is not whether it would have been reasonable for an adjudicator to have granted the Veteran service connection for PTSD in July 2006 or July 2007.  Rather, the question at this stage is whether, given the law extant at the time, and the evidence then of record, it is absolutely clear that a different result should have ensued.  Here, for the reasons stated above, the Board must answer that question in the negative. 


ORDER

New and material evidence to reopen a claim of service connection for hearing loss has been received; to this limited extent, the appeal of this issue is granted.

New and material evidence to reopen a claim of service connection for tinnitus has been received; to this limited extent, the appeal of this issue is granted.

The application to reopen a claim of entitlement to service connection for concussion is denied.

Entitlement to service connection for rectal cancer is denied.

Entitlement to service connection for bladder cancer is denied.

Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for residuals of rectal cancer surgery is denied.

Clear and unmistakable error was not committed in a May 1976 rating decision that did not award service connection for aneurysm; the appeal of this issue is denied.

Clear and unmistakable error was not committed in July 2006 and July 2007 rating decisions that failed to award service connection for PTSD; the appeal of this issue is denied.


REMAND

In light of the Board's conclusion that the claims for service connection for hearing loss and tinnitus are reopened, the claims must be considered on a de novo basis.  The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the claims.

The Veteran has contended that he has hearing loss and tinnitus as a result of his time on active duty.  The RO previously denied the Veteran's claim on the basis that the evidence did not establish that the Veteran has hearing loss or tinnitus that is etiologically linked to service.  

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty.  See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013).  Generally, service connection requires (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999).  In addition, certain chronic diseases, such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from qualifying military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).

For the purposes of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2013).  The Court, in Hensley v. Brown, 5 Vet. App. 155 (1993), indicated that 38 C.F.R. § 3.385 does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a medical relationship between the Veteran's in-service exposure to loud noise and his current disability.  

Every Veteran who served in the active military, naval, or air service after December 31, 1946, shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. §§ 1111, 1137 (West 2002).  A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b).   A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a).

Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology.  Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease.  Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened.  See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996).

Relevant evidence of record concerning the Veteran's claimed hearing loss and tinnitus includes service treatment records showing that the Veteran had some high-frequency hearing loss when he entered active duty.  In particular, the Veteran's January 1971 entry examination revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0 (15)
0 (10)
-10 (0)
---
45 (50)
LEFT
0 (15)
-10 (0)
-5 (5)
---
15 (20)

(NOTE: Prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA). Those figures are on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.)

The Veteran's September 1975 separation examination, measured in ANSI standards, revealed pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
20
20
---
45
LEFT
20
20
20
---
25

In addition, of record is a private audiological evaluation conducted in 2006 that reflects a diagnosis of both hearing loss and tinnitus.  The Veteran has also testified, at the August 2013 hearing, that he first developed hearing loss and tinnitus in service and has had problems with his hearing since that time.

Here, the medical evidence of record clearly shows that hearing loss preexisted the Veteran's military service.  The service treatment records note hearing loss at 4000 Hertz at the time of the Veteran's initial enlistment examination in January 1971.  Consequently, the presumption of soundness does not apply as to this disability.  Accordingly, in order to warrant service connection for hearing loss, it must be shown that the disorder was aggravated by active service.

In this case, VA's duty to assist includes affording the claimant an examination or obtaining a medical opinion when there is competent evidence that a claimant has a current disability, or persistent or recurrent symptoms of a disability; there are indications that the disability may be associated with active service or with a service-connected disability; and the record is insufficient to decide the claim.  See 38 U.S.C.A. § 5103A(d) (West 2002).  Under relevant VA regulations, action should be undertaken by way of obtaining a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability; (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, which may be established by competent lay evidence; and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease.  38 C.F.R. § 3.159(c)(4) (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third prong of Section 3.159(c)(4), which requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, is a low threshold.

In addition, the Veteran has testified that he first experienced hearing loss and tinnitus in service that have continued to the present.  In this regard, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as hearing problems during service, or symptoms of a current hearing loss or tinnitus.  Savage v. Gober, 10 Vet. App. 488, 495 (1997); Washington v. Nicholson, 19 Vet. App. 362 (2005).  He cannot, however, testify about a diagnosis or the etiology of any such current disability, because he would be medically incompetent.  Id.

As noted above, no VA examination was afforded to the Veteran pertaining to his claims of service connection for hearing loss and tinnitus.  In light of the entrance and separation examinations noting hearing loss, as well as the Veteran's contentions regarding the continuity of symptomatology from his time in service to the present, the Board finds that a remand is necessary for a VA examination.  McLendon, 20 Vet. App. 79.  Under these circumstances, evidentiary development is needed to fully and fairly evaluate the Veteran's claims of service connection for hearing loss and tinnitus.  38 U.S.C.A. § 5103A (West 2012); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted).  The Board will therefore remand to obtain a clear assessment of the Veteran's claimed hearing loss and tinnitus by a qualified VA medical professional, based on a thorough review of his claims file and medical history and full audiological examination.  In particular, because the presumption of soundness does not apply as to the Veteran's claimed hearing loss, the relevant inquiry is whether the disorder was aggravated by, rather than incurred in, active service.

Thus, on remand, the Veteran must be afforded a VA examination in order to obtain a current diagnosis based on both an examination and a thorough review of his claims file.  Specifically, the AOJ must arrange for the Veteran to undergo VA examination by a qualified professional, who must review the Veteran's claims file and his assertions and provide a diagnosis of each hearing loss and tinnitus disability the Veteran currently experiences.  In addition to conducting a thorough audiological examination, the designated examiner must provide a medical nexus opinion with respect to any such identified disorder.  The examiner must provide a well-reasoned opinion as to whether hearing loss was aggravated by, rather than incurred in, active service.  The opinion must also address whether the Veteran has tinnitus that is directly attributable to his active military service.  The examiner must include a well-reasoned medical opinion addressing the onset of the Veteran's tinnitus and the medical probabilities that such disability is related to the Veteran's time in service, particularly in light of his contentions regarding in-service noise exposure.  The examiner's opinion must be based upon consideration of the Veteran's documented medical history and assertions through review of the claims file.  A full explanation must be provided for all conclusions.  

Regarding the Veteran's claims for increase, a review of the claims file reflects that he was last provided VA examination in March 2010.  At that time, he reported no ketoacidosis and or hypoglycemia requiring hospitalization but stated that he had had three such episodes requiring treatment over the past year.  He stated that he had lost 60 pounds in the past year and complained of loss of strength in his arms and hands as well as tingling and numbness in his lower extremities.  No restriction of activities was reported.  He stated that he treated his diabetes with diet and oral medications.  He also complained of frequent urination as well as erectile dysfunction treated with oral medication, poor appetite, weakness, fatigue, and high blood pressure.  Testing revealed proteinuria, but no eye, heart, or skin problems were noted.  Neurological examination found sensory deficit in all extremities but normal motor function and reflexes.  

However, the Veteran stated at his August 2013 hearing before the undersigned Veterans Law Judge that he believed his service-connected disabilities had worsened since the March 2010VA examination.  At that time, he stated that he had experienced worsening symptoms of his peripheral neuropathy, diabetes mellitus, and diabetic nephropathy.  In particular, the Veteran complained of increasing numbness in all four extremities, as well as numbness in his back and shoulders.  He stated that the increase in symptomatology was "dramatic" and had begun to keep him from engaging in hobbies such as playing golf.  

The Board notes that the Veteran is qualified, as a lay person, to report symptoms such as pain.  See Savage v. Gober, 10 Vet. App. 488, 495 (1997).  Likewise, where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a new medical examination.  See Allday v. Brown, 7 Vet. App. 517, 526 (1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination).

The Board notes here that the Veteran has claimed that his service-connected peripheral neuropathy disabilities, as well as his diabetic nephropathy with hypertension and his diabetes mellitus with erectile dysfunction, have deteriorated since his last relevant VA examination, which took place more than three years ago.  In light of these complaints, therefore, a remand is required to have a qualified examiner supplement the record with report regarding the current severity of the Veteran's peripheral neuropathy of the bilateral upper and lower extremities, diabetic nephropathy with hypertension, and diabetes mellitus with erectile dysfunction.  Under these circumstances, the Veteran must be scheduled to undergo VA examination at an appropriate VA medical facility.  See 38 U.S.C.A. § 5103A.  In particular, the examiner(s) must identify and describe the current severity of all symptoms of the disabilities at issue.  The VA examiner(s) must specifically address all the Veteran's symptoms in assessing the current severity of his disabilities.

In view of the foregoing, the case is REMANDED for the following action:

Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.

1.  The agency of original jurisdiction (AOJ) must review the claims file and ensure that all notification (in particular, correspondence specifically addressing the VCAA notice and duty-to-assist provisions) and development procedures per the statutory provisions at 38 U.S.C.A. §§ 5102, 5103, 5103A, and 5107 are met.  This includes requesting that the Veteran provide sufficient information, and if necessary authorization, to enable the AOJ to obtain any additional pertinent evidence not currently of record pertaining to the claims on appeal.

2.  The Veteran must be scheduled for VA examinations and advised that failure to appear for any examination as requested, and without good cause, could result in the denial of his claims.  See 38 C.F.R. § 3.655 (2013).  The entire claims file, to include a complete copy of this remand, must be made available to, and reviewed by, each designated examiner.  The examiner's reports must reflect consideration of the Veteran's documented medical history and assertions.

Hearing loss and tinnitus-The examiner must conduct an audiological examination of the Veteran and provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that any currently diagnosed hearing loss was aggravated by service.  If so, the examiner must indicate whether the evidence clearly and unmistakably shows that the in-service worsening was due to the natural progression of the disorder.  The examiner must also opine as to whether it as least as likely as not that any tinnitus is related to his period of military service, and particularly to his claimed in-service exposure to acoustic trauma from weapon fire and other explosions.  The examiner must specifically review the Veteran's service treatment records, including his multiple in-service audiograms (converted to ISO standards as necessary), and comment upon them in the context of any opinion provided.  The reviewer must further specifically address the Veteran's claim that he first experienced hearing loss and tinnitus in service in the context of any negative opinion.  (Findings should be made necessary to apply the provisions of 38 C.F.R. § 3.385.)

The examiner must set forth the complete rationale for the opinions expressed, to include citation to pertinent evidence of record and/or medical authority, as appropriate.  If the examiner concludes that hearing loss was not worsened by service or that tinnitus did not begin during military service or is not related to military service, an explanation must be provided for why the Veteran's statements regarding onset in service and continuity of symptoms thereafter are inaccurate.  Citations to the record or relevant medical principles must be included as necessary to explain the examiner's opinions.

Peripheral neuropathy-The examiner must specifically indicate whether the Veteran's peripheral neuropathy of the bilateral upper and lower extremities more nearly approximates mild, moderate, moderately severe, or severe nerve impairment.  The nerves affected must be specifically identified and, for each nerve affected, the disability must be described in this manner.  

The examiner must discuss whether the Veteran experiences complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand, pronation incomplete and defective, absent flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm, and flexion of wrist weakened with pain with trophic disturbances.   The examiner must also note whether the Veteran has marked muscular atrophy, incomplete paralysis of the sciatic nerve; or complete paralysis of the sciatic nerve (i.e., the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost).  

Additionally, any marked muscular atrophy or functional impairment of the upper or lower extremities deemed to be associated with the Veteran's peripheral neuropathy of the bilateral upper and lower extremities must be identified.  Any indicated evaluations, studies, and tests, must be accomplished and the results must be included in the examination report.  The examiner must identify all symptoms that are associated with the Veteran's peripheral neuropathy of the bilateral upper and lower extremities.

Diabetic nephropathy with hypertension-The examiner must describe the extent of the Veteran's present disability, including specific findings as to the frequency and persistence of any albuminuria; BUN and creatine levels; the extent of decrease of function of the kidneys or related organ systems (especially cardiovascular); and symptoms of hypertension.  The examiner must specifically conduct all tests deemed necessary to produce the findings necessary to evaluate hypertension.  The examiner must also note any lethargy, weakness, anorexia, weight loss, or a limitation of exertion.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.  The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached.

Diabetes mellitus with erectile dysfunction-The examiner must comment on all pertinent symptoms found on examination to be associated with the Veteran's service-connected diabetes mellitus with erectile dysfunction.  In particular, the examiner must indicate whether his diabetes mellitus requires insulin, restricted diet, and regulation of activities.  In discussing the regulation of activities, the examiner should state whether the Veteran's occupational and recreational activities must be restricted due to his diabetes mellitus.  In addition, the examiner must indicate whether there have been any episodes of ketoacidosis or hypoglycemic reactions in the past year.  If so, the examiner must note the number of any such episodes per year that required hospitalizations and the number of any such episodes per month that required visits to a diabetic care provider.  Regarding the Veteran's erectile dysfunction, the examiner must state whether the Veteran experiences deformity of the penis with loss of erectile power.

3.  After the requested examinations have been completed, each report must be reviewed to ensure that it is in compliance with the directives of this remand.  If any report is deficient in any manner, it must be returned to the examiner.

4.  After completing the requested actions and any additional notification and/or development deemed warranted, the claims on appeal must be adjudicated in light of all pertinent evidence and legal authority.  If any benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified.  The Veteran has the right to submit additional evidence and argument on the 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. 2013).



______________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs