Citation Nr: 1338398 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-22 659A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for follicular lymphoma, a form of Non-Hodgkin's Lymphoma to include as due to herbicide exposure. 2. Entitlement to service connection for follicular lymphoma, a form of Non-Hodgkin's Lymphoma to include as due to herbicide exposure. 3. Whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 4. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 5. Whether new and material evidence has been received to reopen a claim of service connection for defective visual acuity. 6. Entitlement to service connection for defective visual acuity. 7. Entitlement to service connection for a prostate condition other than cancer, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from December 1962 to December 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2009 and November 2009 rating decisions by the Muskogee, Oklahoma, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Veteran relocated during the pendency of his appeal, and jurisdiction currently resides with the Winston-Salem, North Carolina, RO. In pertinent part, the June 2009 decision denied service connection for a prostate condition on the merits, and declined to reopen previously denied claims of service connection for diabetes and follicular lymphoma. The November 2009 decision declined to reopen a previously denied claim of service connection regarding visual acuity. In a December 2011 supplemental statement of the case (SSOC), the RO indicated that reopening of a claim with regard to the prostate was required. This is incorrect. The previously denied prostate claim was limited to consideration of cancer; the current claim involves noncancerous enlargement, such as nodular hyperplasia or chronic prostatitis. Accordingly, the issue has been characterized as listed above, and as was done in the decision on appeal and the statement of the case (SOC), to reflect that a decision on the merits of the underlying claim is appropriate. With regard to the issues of service connection for lymphoma, diabetes, and visual acuity, the matters are characterized to reflect the need for reopening prior to consideration of the underlying merits. The Board must decide in the first instance whether the Veteran has submitted new and material evidence to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) ("Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened...."). The Board notes that no additional relevant service department records are among the evidence submitted since any last final denial, and hence a reopening, and not reconsideration, analysis is proper. 38 C.F.R. § 3.156(c). The Veteran testified at an April 2013 personal hearing held before the undersigned Veterans Law Judge via videoconference from the RO; a transcript of the hearing is associated with the electronic claims file maintained as part of the Virtual VA system. At the hearing the Veteran submitted additional evidence, along with a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board has reviewed all records associated with Virtual VA to ensure consideration of the totality of the evidence. In March 2012 correspondence, the claims of entitlement to service connection for a heart murmur and hypertension were received by the RO, but a review of the claims file indicates that these claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of service connection for defective visual acuity is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for follicular lymphoma was most recently denied in an unappealed December 2004 rating decision on the grounds that no nexus to service was shown, either by evidence or presumption of exposure to herbicides; the denial became final in December 2005. 2. Evidence received since December 2004 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises the reasonable possibility of substantiating the claim of service connection for follicular lymphoma. 3. Service connection for diabetes mellitus, type II, was most recently denied in a July 2005 rating decision on the grounds that no nexus to service was shown, either by evidence or presumption of exposure to herbicides; the Veteran failed to perfect an appeal of this decision, and the denial became final in July 2006. 4. Evidence received since July 2005 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises the reasonable possibility of substantiating the claim for service connection for diabetes mellitus, type II. 5. The Veteran served at a Royal Thai Air Force Base in 1969, with duties near the base perimeter; exposure to herbicides is conceded. 6. The Veteran is currently diagnosed with a Non-Hodgkin's Lymphoma, in remission, and type II diabetes mellitus. 7. Service connection for defective visual acuity was most recently denied in an unappealed September 2002 rating decision on the grounds that no current disability was shown; the denial became final in September 2003. 8. Evidence received since September 2002 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, addresses an unestablished fact, and raises the reasonable possibility of substantiating the claim for service connection for defective visual acuity. 9. No currently diagnosed prostate condition was first manifested on active duty or for many years after; the preponderance of the evidence is against a finding that a current prostate condition is related to military service. CONCLUSIONS OF LAW 1. The December 2004 rating decision denying service connection for follicular lymphoma is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. The criteria for reopening the previously denied claim of service connection for follicular lymphoma are met. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156 (2013). 3. The criteria for service connection of follicular lymphoma are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013) 4. The July 2005 rating decision denying service connection for diabetes mellitus, type II, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 5. The criteria for reopening the previously denied claim of service connection for diabetes mellitus, type II, are met. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156 (2013). 6. The criteria for service connection of diabetes mellitus, type II, are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013) 7. The September 2002 rating decision denying service connection for defective visual acuity is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 8. The criteria for reopening the previously denied claim of service connection for defective visual acuity are met. 38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. §§ 3.102, 3.156 (2013). 9. The criteria for service connection of a prostate condition other than cancer are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). With regard to reopening of the previously denied claims and the claims of service connection for lymphoma and diabetes, the Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed in connection with those issues. The final issue to be decided herein is the question of service connection for a prostate condition other than cancer. VA has met all statutory and regulatory notice and duty to assist provisions for that issue. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. An October 2008 letter sent prior to the initial adjudication of the claim satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment and personnel records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). No VA examination has been afforded the Veteran in connection with his prostate claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the "injury" alleged by the Veteran, exposure to herbicides, is established by the record, and there is ample evidence of a current prostate disability, there is a complete lack of competent evidence raising any possibility of a nexus between the two. The claimed disability is not a listed presumptive condition under 38 C.F.R. § 3.309, and the Veteran has offered no evidence beyond his own opinion that a nexus to service exists. No medical professional has so opined, or even raised the possibility, nor has any learned text or research material indicating a possible relationship to herbicides been exposed. The Veteran's bare assertion and belief lies beyond the ken of a layperson; he lacks the specialized knowledge or training to render a valid opinion on this point. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). At the Veteran's April 2013 hearing, the undersigned discussed in detail the elements of each of the claims on appeal, to include identifying the specific types of evidence and information which would be of assistance in substantiating them. Additionally, the Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) (2012), nor have they identified any prejudice in the conducting of the Board hearing. The Board, therefore, concludes that it has fulfilled its duty under Bryant. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). New and Material Evidence Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence 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. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). With regard to lymphoma and diabetes, the Veteran alleges that his currently diagnosed conditions are related to herbicide exposure in service. Both the December 2004 and July 2005 decisions which are the most recent final denials with regard to those issues were based on findings that the Veteran was not in fact exposed to herbicides. He was found to have not set foot in Vietnam, and hence was not presumed exposed, and he had not otherwise established actual exposure. Since the final denials of service connection for those diseases, the Veteran has submitted lay statements from multiple family members, all indicating that over the years they had known him, the Veteran had reported to them that he had stopped in Vietnam for a layover of several hours on his way to a duty station in Thailand. This is the same allegation he had made in connection with the previously denied claims. Therefore, to the extent the family members are merely repeating the Veteran's already uttered allegations, they are not new. They are cumulative and redundant of the evidence already of record, and were fully considered by VA. However, one of the Veteran's brothers added his own independent recollection to the statement. He stated that he recalled laughing at the Veteran for talking about his short stay in Vietnam, as the brother had himself been deployed there for a full tour of duty in 1967. By placing the Veteran's statement in this context, the brother has raised an additional, independent factor to be considered in assessing the credibility of the allegation. This has not been previously considered, and raises the possibility of a need for additional investigation and development. The brother's statement must therefore be considered both new and material, as it provides new information to consider in determining the likelihood of herbicide exposure. Accordingly, reopening of the previously denied claims of service connection for lymphoma and diabetes, both claimed as due to herbicide exposure, is warranted. The merits of those claims are addressed in the Service Connection section below. With regard to defective visual acuity, denied in September 2002 on the grounds that no current disability was shown, the Veteran has now submitted ample competent and credible medical evidence of a variety of bilateral eye conditions, including cataracts and dry eye syndrome. Further, at the April 2013 hearing, the Veteran was observed to have watery eyes, with some swelling and apparent abnormality on the left. The Board notes that additionally glaucoma in both eyes was diagnosed, but does not consider such for purposes of reopening, as a claim for that condition was independently adjudicated, denied, and not appealed in June 2009. Additionally, the diagnosed refractive errors are not considered, as those are by law not considered service-connectable disabilities. 38 C.F.R. § 3.303(c). In any case, the current evidence of diagnosed eye disabilities which may be subject to service connection added to the file since September 2002 constitutes new and material evidence requiring reopening of the previously denied claim of service connection for defective visual acuity. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal 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, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). No listed chronic disease is at issue here. Other diseases may be presumed service connected in Veterans who were exposed to herbicides. The listed conditions must have been manifested to a compensable degree at any time after exposure. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). These presumptions are rebuttable. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Lymphoma and Diabetes Follicular lymphoma, as a Non-Hodgkin's Lymphoma, and type II diabetes mellitus are listed presumptive conditions for herbicide-exposed Veterans. 38 C.F.R. § 3.309(e). Private and VA medical records amply document the presence of both conditions. While the lymphoma appears to be in remission at this time, it continues to be carried as a diagnosis, and the Veteran is under active treatment for type II diabetes. Under the Rating Schedule, both conditions would therefore be or had been compensable in degree. 38 C.F.R. §§ 4.117, 4.119, Diagnostic Codes 7715, 7913. Neither condition was first manifested on active duty service. Service treatment records show no diagnoses, complaints, or signs and symptoms of either condition during military service. Additionally, the Veteran does not allege entitlement to such direct service connection. Instead, he alleges that he was exposed to herbicide agents during service, and hence is entitled to application of presumptive service connection for these conditions. A Veteran is presumed exposed to herbicides if he served in Vietnam during the period from January 9, 1962, to May 7, 1975. Service in Vietnam includes visitation to that country during the applicable period. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran has alleged that although he was stationed in Thailand for a time in 1969, on his way to his post his plane stopped in Vietnam for several hours to let other servicemen off the plane. He states that he was on the tarmac for about three hours, and hence is entitled to the presumption of exposure. The Board need not make any determination on the Veteran's exposure in Vietnam, however, as herbicide exposure is actually established based on service in Thailand. The service departments and VA have acknowledged that herbicides, including Agent Orange, were used at Royal Thai Air Force Bases (RTAFBs) to keep vegetation back from the perimeters of the facilities, to facilitate security and other operations. If a service members duties took him near the areas where spraying took place, VA has determined that exposure to herbicides must be conceded on a direct/facts found basis. VA Adjudications Manual M21-1MR, IV.ii.2.C.10.q. Service personnel records indicate that although the Veteran's parent unit appears to have been based out of Japan, he himself was stationed at the Nakhon Phanom RTAFB beginning in January 1969. He was an AGE dispatch driver. He reports that his duties included driving supplies and personnel out to the perimeters of the base. He describes bringing equipment to repair crews and supplying the guards walking their posts. Importantly, the Veteran has submitted a statement from another service member who was also present, with a different section, and corroborates his reported duties. The Board therefore finds that during active duty the Veteran was regularly present in areas subject to spraying of herbicide agents at a RTAFB, and has established likely exposure to those herbicides. Accordingly, the Veteran is entitled to application of the presumption of service connection for herbicide exposed Veterans. As the evidence of record establishes diagnoses of listed herbicide related diseases, follicular lymphoma and type II diabetes, and there is no evidence of record indicating a nexus for them other than herbicide exposure, application of the presumption under 38 C.F.R. § 3.309(a)(6) requires a finding of service connection for the claimed disabilities. Prostate Condition The Veteran has alleged that his now-established herbicide exposure is also responsible for his ongoing prostate problems. However, the record is very clear that the Veteran has never been diagnosed with prostate cancer. While he has signs and symptoms of prostate problems, to include elevated PSA levels and urination problems, repeated biopsies have confirmed that there is not now, and never has been, any malignancy present. Instead, doctors have diagnosed a variety of benign conditions, including chronic prostatitis, benign prostatic hypertrophy, and nodular hyperplasia. He has had surgery for treatment of the glandular swelling from a private doctor. None of the diagnosed conditions is subject to presumptive service connection for herbicide-exposed Veterans. Only prostate cancer is a listed disease. 38 C.F.R. § 3.309(e). Therefore, the Veteran cannot rely on the presumption to establish a nexus; he must establish the existence of such through production of evidence sufficient to at least place the question in equipoise. He has not done so. A review of service treatment records shows no treatment for, diagnosis of, or complaint related to the prostate. The first indication of prostate problems appears to have arisen in 1996, fourteen years after separation, when PSA levels became elevated and the possibility of cancer was first investigated and rejected. Since that time, while several Tricare and private doctors have treated the Veteran for a variety of prostate, bladder, and other genitourinary problems, no medical professional has offered any opinion on etiology. None have indicated a relationship to service, either through herbicide exposure or otherwise. The sole opinion of record supporting a finding of a nexus between service and current prostate problems is the Veteran's own. However, the Veteran is a layperson, and lacks the specialized knowledge and training needed to opine on a subject as complex as the etiology of prostate problems. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). This is not a situation where the Veteran is able to report a directly observable cause and effect relationship; it requires analysis and application of medical principles not common knowledge. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's opinion is not competent evidence and may be given no probative weight. Accordingly, there is a complete lack of evidence on the nexus question for a non-cancerous prostate condition. It is true that the compensation system is considered uniquely pro-Veteran. See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). However, in the absence of evidence, there cannot be even equipoise, and there can be no resolution of doubt. The Veteran still ultimately bears some burden of production. 38 U.S.C.A. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). As there is no evidence to support any finding of a nexus between service, to include herbicide exposure, and any current prostate condition, entitlement to the benefit sought is not warranted. ORDER New and material evidence having been received, reopening of the claim of service connection for follicular lymphoma is granted. Service connection for follicular lymphoma is granted. New and material evidence having been received, reopening of the claim of service connection for diabetes mellitus, type II, is granted. Service connection for diabetes mellitus, type II, is granted. New and material evidence having been received, reopening of the claim of service connection for defective visual acuity is granted. Service connection for a prostate condition, other than cancer, is denied. REMAND With regard to the claim of service connection for defective visual acuity, additional notice and assistance to the Veteran is required prior to adjudication of the appeal. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The record is somewhat unclear as to exactly what vision conditions are currently present, or have been present over the course of the appeal. However, the Veteran reports failing vision, and he is competent to report the symptoms he experiences through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994). Medical records also indicate the presence of several conditions. Records also show several notations of vision problems in service, indicating both the occurrence of an in-service disease or injury, and the potential for a nexus to current disability. A VA examination is therefore required. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board additionally notes that in light of the above grant of service connection for diabetes, the potential exists for a finding of a current vision condition secondary to that disease. While diabetic retinopathy appears excluded based on VA treatment records, other diagnoses must be considered. The Veteran has not received notice regarding secondary claims, and therefore on remand such must be accomplished. Finally, updated VA treatment records may be of benefit to the Veteran, and such should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and provide him fully compliant notice as required under applicable laws, regulations, and legal precedents. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice must include information regarding secondary service connection under 38 C.F.R. § 3.310. The Veteran must be specifically asked to identify, and provide releases for, any private providers who have treated him for vision problems. Should he supply such, appropriate action to secure those records must be taken. 2. Associate with the claims file complete VA treatment records from the medical center in Fayetteville, North Carolina, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of June 2010 to the present. 3. Schedule the Veteran for a VA eye examination. The claims folder must be reviewed in conjunction with the examination. All necessary testing must be accomplished. The examiner must identify all current diagnosis of the left and right eyes. For each condition diagnosed, the examiner must opine as to whether it is at least as likely as not such is caused or aggravated by service or a service-connected disability, to include diabetes. If any current disability stems from refractive error, such must be stated. A full and complete rationale for all opinions expressed is required. 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs