Citation Nr: 1338601 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 12-04 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for testicular cancer, including as due to herbicide exposure in service. 2. Entitlement to service connection for benign prostate hypertrophy (BPH), claimed as prostate surgery, also including as due to herbicide exposure in service. 3. Entitlement to a compensable rating for bilateral hearing loss prior to July 25, 2013, and to a rating higher than 40 percent since. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to August 1968, including a tour in Vietnam from August 1967 to August 1968. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for testicular cancer and BPH as well as a compensable rating for service-connected bilateral hearing loss. In July 2012, as support for these claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. In January 2013 the Board advanced the claims on the docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). In February 2013 the Board remanded the claims to the RO via the Appeals Management Center (AMC) for further development and consideration, including, as specifically pertinent to these particular claims, having the Veteran provide the names and addresses of healthcare providers that had evaluated or treated him for these conditions, especially at places suggested in the records already on file. As well, that remand was to obtain his potentially relevant records from the Social Security Administration (SSA), and then to have him undergo a VA audiologic examination for compensation purposes to reassess the severity of his bilateral hearing loss so a determination could be made as to whether a higher rating was warranted for this service-connected disability. The directives of that remand were accomplished, including as specifically concerning these particular claims. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall v. West, 11 Vet. App. 268, 271 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Indeed, in a September 2013 decision on remand, the AMC increased the rating for the bilateral hearing loss from 0 percent (i.e., noncompensable) to 40 percent as of July 25, 2013, so effective from the date of the VA compensation examination the Veteran had on remand showing greater hearing loss to this level of severity. The United States Court of Appeals for Veterans Claims (Court/CAVC) has held, however, that a decision during the pendency of an appeal awarding a higher rating, but less than the maximum possible rating, does not abrogate the pending appeal unless the Veteran indicates he is content with the greater rating he received. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran has continued to appeal for an even higher rating for his bilateral hearing loss, so this claim now concerns whether he was entitled to a compensable rating for this disability prior to July 25, 2013, and whether he has been entitled to a rating higher than 40 percent for this disability since. That September 2013 AMC decision also granted his claim of entitlement to service connection for a psychiatric disorder - specifically, for depressive disorder not otherwise specified (NOS) - which was an additional claim on appeal the Board had reopened and remanded to the AMC like the others for further development and consideration. The AMC assigned an initial 10 percent rating for this mental disorder retroactively effective from October 26, 2010, and a higher 30 percent rating for this mental disorder as of January 13, 2011. The Veteran has not since, in response, separately appealed either those ratings or effective dates, so unless and until he does, that claim is no longer before the Board. See, e.g., Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Therefore, only the claims for service connection for testicular cancer and BPH and for higher ratings for the bilateral hearing loss remain in dispute. FINDINGS OF FACT 1. The Veteran does not presently have testicular cancer, and it is not shown he has at any time since the filing of his claim for this disease. 2. Although he has BPH, it is not shown to have incepted during his service or otherwise to be related or attributable to his service. 3. According to the medical and other evidence in the file, before July 25, 2013, he had no more than Level IV hearing loss in his right ear and Level II in his left ear; effectively since July 25, 2013, he has had no more than Level VII hearing loss in each ear, so bilaterally. CONCLUSIONS OF LAW 1. The Veteran has not established he has testicular cancer, much less because of disease or injury incurred in or aggravated by his service or that may be presumed to have been incurred during his service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. His BPH also was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria are not met for a compensable rating for his bilateral hearing loss prior to July 25, 2013, or for a rating higher than 40 percent since. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.85, Diagnostic Code 6100, 4.86 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants notice and assistance with their claims upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). In particular, the notice requirements of the VCAA require VA to notify the claimant of the information or evidence necessary to substantiate the claim, including of the subset of the necessary information or evidence the claimant is to provide versus the subset of the necessary information or evidence VA will attempt to obtain on the claimant's behalf. The so-called "fourth element" of the notice requirement requesting the claimant to provide any evidence in his possession pertaining to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim. Those five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; but also the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date in the eventuality service connection is granted. These notice obligations have been satisfied as concerning these claims. The RO sent the Veteran a letter in December 2012 informing him of the requirements for establishing his entitlement to service connection for his alleged testicular cancer and BPH and a higher rating for his bilateral hearing loss. Regarding the latter, the notice letter advised him that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vasquez-Flores, the Federal Circuit Court held that generic notice in response to a claim for an increased rating is all that is required, so VA does not also have to advise a Veteran of alternative diagnostic codes (DCs) or ask that he submit daily-life evidence. Also in accordance with the requirements of VCAA, the letter informed the Veteran of the evidence and information he was responsible for obtaining and of the evidence that was considered VA's responsibility to obtain. The Board additionally finds that all necessary development of these claims has been accomplished in terms of the duty to assist; therefore, appellate review of these claims may proceed without prejudicing the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist him in obtaining evidence necessary to substantiate these claims. 38 U.S.C.A. § 5103A. To this end, VA has obtained his available service treatment records (STRs), but also his post-service VA clinical records, private medical records, and his personal statements to include the transcript of his videoconference hearing testimony. As well, the Veteran has been afforded an adequate VA medical examination on the issue of his entitlement to an increased rating for his service-connected bilateral hearing loss. Indeed, the examination he had on remand was the impetus for increasing the rating for this service-connected disability from 0 to 40 percent as of the date of the examination. The VA examination reports, in the aggregate, are based on a history he provided, but also an independent review of the record, necessary tests, and objective physical examinations. Conclusions reached and diagnoses given were consistent with the examination reports. Thus, the Board finds that he has been provided the necessary examinations concerning his claim for higher ratings for his bilateral hearing loss. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board realizes he has not also been afforded VA medical examinations regarding his claimed testicular cancer and BPH; however, the Board finds that VA examinations are unnecessary to fairly decide these other claims. Two pivotal Court cases address the need for a VA examination and when one should be scheduled, including for a medical nexus opinion. These precedent cases are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent recurrent symptoms of a disability may be associated with the Veteran's service or with a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). The third prong, which requires that the evidence of record "indicate" that the claimed disability or persistent or recurrent symptoms "may be" associated with the established event, injury, or disease in service is a "low threshold". McLendon, at 83. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicates those symptoms may be associated with his active military service. But even as Duenas acknowledges, this is not to say or suggest that VA is obligated to provide an examination for a medical nexus opinion merely as a matter of course. Duenas, 18 Vet. App. at 519. Indeed, if such were the case, this would circumvent the craftily tailored language of the statute and regulation governing when examinations and opinions should be obtained and require provision of an examination and opinion in virtually every instance, so virtually without exception. The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has clarified that, when determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Furthermore, the Veteran is competent even as a layman to proclaim having experienced relevant symptoms ever since his service, even if not also competent to say they necessarily are the result of his military service and the claimed disorders. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Still, generally speaking, VA is not obligated to provide examinations for medical nexus opinions based on unsubstantiated lay statements alone. See Duenas, 18 Vet. App. at 519. Here, regarding the alleged testicular cancer, there is not the required suggestion of current disability on account of this disease, in fact, not at any point since the filing of the claim for this disease, thus no need for a VA examination inasmuch as there is no existing disability to causally relate or attribute to the Veteran's service. And as for the BPH, there is no suggestion of in-service incurrence. Consequently, there is no duty to provide VA medical examinations regarding these claims. The Board also has considered the holdings in another precedent case, Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, in the absence of evidence of relevant in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's testicular cancer or BPH would in essence place the examining physician in the role of fact finder, would require reliance on an entirely unsubstantiated history, including as concerning what supposedly occurred during service and during the many years since, and therefore could only result in an opinion having little to no actual probative value. In other words, any medical opinion purporting to provide a nexus or etiological link between the Veteran's claimed disabilities and his military service necessarily would be based on an unsubstantiated history regarding what supposedly occurred in service, and since, so would not have the proper factual foundation and predicate. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of both in-service injury or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case regarding the claims for testicular cancer and BPH because there is no reasonable possibility that such assistance would aid in substantiating these claims. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). For these reasons and bases, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA examination regarding the claim of entitlement to an increased rating for bilateral hearing loss, though not also concerning the claims of entitlement to service connection for the alleged testicular cancer and BPH. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Governing Statutes, Regulations, and Case Law Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). This notion of continuity of symptomatology under 38 C.F.R. § 3.303(b), however, only applies to a condition that was first noted during service and that is one of the conditions that VA considers a "chronic disease" according to 38 C.F.R. § 3.309(a). It therefore applies to the Veteran's testicular cancer claim because a malignant tumor is a chronic disease under 38 C.F.R. § 3.309(a). See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). It does not, however, apply to his claim for BPH. Establishing entitlement to direct service connection therefore generally requires having: (1) competent and credible evidence confirming the existence of the claimed disability or, at the very least, showing the Veteran has had it at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a relationship or correlation between the disease or injury in service and the presently-claimed disability, which is the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. In the absence of proof of a present disability there necessarily can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). As already alluded to, a malignant tumor is considered to be a chronic disease, per se, and therefore will be presumed to have been incurred in service if manifested to a minimum compensable degree of at least 10-percent disabling within the initial post-service year. This presumption, however, is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Also, a Veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975 (Vietnam era), is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. The presumption requires that a Veteran actually have stepped foot on the landmass of Vietnam or served in the inland waterways to be considered as having had service in country. Haas v. Peake, 525 F.3d 1168 (2008); VAOPGCPREC 27-97. If the Veteran had this type of service, then the following diseases are deemed presumptively associated with his presumed herbicide exposure: chloracne or other acneform diseases consistent with chloracne, Type 2 Diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, early onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). These diseases shall be service connected if a Veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 (West 2002) and 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. §§ 501(a), 1116 (West 2002); 38 C.F.R. § 3.309(e). 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, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41,442-41,449, and 61 Fed. Reg. 57,586-57,589 (1996). But notwithstanding these presumptive provisions, a claimant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). See, too, McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). Competency of evidence differs from its credibility and ultimate weight. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although this is not determinative of an opinion's probative value. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative because this is just as well tantamount to saying "may not" or "could not". See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran). Indeed, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility. But recognizing this, it is equally true the Board may reject a medical opinion based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In deciding these claims, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in detail, certainly not exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Testicular Cancer The Veteran maintains that he has testicular cancer and that it is the result of exposure to herbicides during his service in Vietnam. The evidence reflects that he was diagnosed with testicular cancer of his left testicle in May 1989. But the tumor was excised, and he has been cancer free ever since, so no longer has any cancer affecting either testicle. He filed his claim of entitlement to service connection for left testicular cancer in October 2010, more than 20 years, so two decades, after his testicular cancer was treated and consequently resolved. The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). As already mentioned, Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Here, though, while the Veteran admittedly has had testicular cancer in years past, specifically, in 1989 and thereabouts, there is no suggestion, much less indication, that he continues to have it or that he has at any point since the filing of his claim for this condition in 2010. Hence, the present disability requirement is not met, and service connection for testicular cancer is unwarranted under any asserted or potential theory of entitlement. 38 C.F.R. §§ 3.303, 3.307, 3.309(a) and (e). Moreover, service connection for testicular cancer would not be warranted in any event, so even had he met this requirement of showing he still has it. His STRs are completely unremarkable for suggestion of it, either in the way of a subjective complaint (e.g., relevant symptom, etc.) or objective clinical finding such as a pertinent diagnosis. And, indeed, there is no contention he had testicular cancer during his service or even for many years after his discharge. As such, the evidence does not reflect this disease was directly incurred during his service or that it alternatively initially manifested to the required minimum compensable degree of at least 10-percent disabling within the year following his discharge to allow presuming it was incurred during his service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303(a), 3.307, 3.309(a). Furthermore, the onset of the testicular cancer more than two decades later tends to refute any notion it had originated during his service or within the required one year after it concluded. In this circumstance, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following service during which there was no clinical documentation of the claimed disorder). Service connection for testicular cancer would not be warranted under 38 C.F.R. § 3.303(d), either, as there is no competent and credible evidence of an etiological link between this condition and his service. The Board is mindful of his insistence of an etiological link between his testicular cancer and his service. But while a layman is competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the origins of cancer fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board, therefore, cannot rely on his representations regarding the origins of his testicular cancer, even, again, accepting that he has had it in years past, though not apparently for quite a while. See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). Finally, service connection for testicular cancer cannot alternatively be granted presumptively under 38 C.F.R. § 3.309(e) because it is not one of the diseases presumptively associated with herbicide exposure in Vietnam. For these reasons and bases, the preponderance of the evidence is against this claim of entitlement to service connection for testicular cancer. As such, the benefit-of-the-doubt rule is inapplicable, and this claim resultantly must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. BPH The Veteran also attributes his BPH and prostate issues to exposure to Agent Orange in Vietnam. But just as in the case of his testicular cancer, his STRs make no mention of BPH or other abnormality involving his prostate gland in general. His military service ended in August 1968. In November 1999, so some 31 years later, he reported urinary problems that he indicated he had had at least four times in the previous year, meaning since 1998 or thereabouts. He had a Foley catheter indwelling to determine the source of the problem and try and alleviate it, and testing revealed chronic prostatitis. An August 2002 biopsy of his prostate revealed no evidence of cancer. A private medical report dated in February 2003 indicates he had been having problem s with urinary retention "for years" and had been straight catheterizing himself with increasing frequency. He had BPH and chronic prostatitis. Private medical records dated in April 2003 indicate he began experiencing obstructed voiding symptoms gradually over the years. According to an April 2003 office note, he presented prior to a transurethral resection of the prostate (TURP) scheduled to take place the following month. Apparently, there was a longstanding history of prostate problems, including prostatitis. According to him, the problems with urinary retention had begun some four years earlier, so in the 1998/99 timeframe. In September 2005, a long history of BPH with obstructive symptoms, status-post TURP one and a half years earlier, was noted. He did well postoperatively for a year before obstructive symptoms began again. The impression was significant regrowth of the prostatic lateral lobes. In September 2005 a prostate biopsy revealed benign prostatic tissue and chronic prostatitis. May 2006 VA progress notes indicate he had a history of chronic prostatitis and that the symptoms had been relieved by a TURP done two years earlier. However, he was noticing a gradual return of urgency, frequency, hesitancy, and a slow stream. The impression was recurrent BPH outlet obstruction. He underwent a simple suprapubic prostatectomy in August 2006. A June 2007 VA progress note indicated he was very happy with his voiding status. He emptied well and denied incontinence, abnormal frequency, or nocturia. There were no urinary tract infections or retention episodes. He was off all BPH medication. This collective body of evidence reveals his chronic or recurrent prostatitis and BPH began some time before November 1999, although a precise date of onset remains unclear. What is clear, though, is that it was not until really long after his military service had ended. His STRs are completely unremarkable for suggestion of prostate related problems or issues, and he has not alleged that he had any during his service. He suggested in 1999 that his symptoms had been present for about a year, so, if true, meaning only since 1998 or thereabouts. Thus, even by his own admission they had not started until long after his service. The Board accordingly finds that BPH or similar problem was not incurred during his service, thus, service connection based on in-service incurrence is not warranted. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The Board further finds that the claimed BPH is not otherwise related to his service, either, as there is no competent and credible medical evidence tending to substantiate the required nexus or correlation between this condition and his service. 38 C.F.R. § 3.303(d). The Board recognizes his argument regarding this purported etiological link between his BPH and prostate problems and his service. But as already alluded to, although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at435, conditions of the prostate fall outside the realm of common knowledge of the lay person. See Jandreau, 492 F.3d at 1377 n. 4 (lay persons not competent to diagnose cancer). The Board, therefore, cannot rely on his representations regarding the origins of his BPH or any other prostate condition or related issue. He has argued that his BPH is the result of exposure to herbicides during his service, and particularly in Vietnam. While prostate cancer is presumptively linked to herbicide exposure in Vietnam, BPH and other prostate conditions are not. Thus, service connection on a presumptive basis as due to herbicide exposure in Vietnam for his BPH is unwarranted. 38 C.F.R. §§ 3.307, 3.309(e). This is not a case where the available evidence is in relative equipoise, meaning about evenly balanced for and against this claim. Rather, there is no competent and credible evidence in favor of this claim. Thus, the preponderance of the evidence is against this claim, so the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra. Statutes, Regulations and Cases Governing Claims for Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected bilateral hearing loss was rated zero-percent disabling, i.e., noncompensable, under the provisions of 38 C.F.R. § 4.85, Diagnostic Code 6100 defore July 25, 2013 and 40 percent effective that date. Evaluations of defective hearing range from 0 to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. The ratings for disability compensation for hearing loss are determined by the mechanical application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). When a Veteran evidences an exceptional pattern of hearing impairment, such as when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral, to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa again is to be used, whichever results in the higher number. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). On VA examination in January 2011, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 65 70 51 LEFT 30 30 60 55 44 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 90 in the left ear. These results correlate to Level IV hearing loss in the right ear and Level II hearing loss in the left ear. The Veteran submitted records of VA audiological treatment dated in June 2012 that reflected a worsening of his hearing loss disability since January 2011. However, the results of audiological testing performed at the VAMC in June 2012 cannot be used to evaluate his hearing loss disability under VA standards, as word recognition testing was completed using NU6 stimuli with a female speaker, presented using recorded material, as opposed to using the Maryland CNC word list, as required by 38 C.F.R. § 4.85(a). On July 25, 2013, the Veteran was afforded another VA audiologic examination. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 70 70 58 LEFT 40 40 60 60 50 Speech audiometry revealed speech recognition ability of 58 percent in the right ear and of 58 in the left ear. These results correlate to Level VII hearing loss in the right ear and Level VII hearing loss in the left ear. An exceptional pattern of hearing loss has not been shown at any time, so Table VI (rather than Table VIa) has been used throughout this analysis to determine the numeric designation of hearing impairment. 38 C.F.R. §§ 4.85, 4.86. The Veteran had Level IV and Level II hearing loss before July 25, 2013. Applying Level IV and Level II hearing loss to Table VII corresponds to a zero percent disability rating. Since his July 25, 2013, VA compensation examination, he has had Level VII hearing loss bilaterally, so in each ear. Applying Level VII and Level VII hearing loss to Table VII corresponds to a higher 40 percent disability rating. Thus, a 40 percent rating, but no higher, is warranted effective July 25, 2013, the date of that VA compensation examination showing this greater level of hearing loss. No more than a zero percent evaluation was warranted beforehand, however. Generally, the effective date of an award based on an original claim or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a). In the case of a claim for increase, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). The Veterans Court (CAVC) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable"; if the increase occurred more than one year prior to the claim, the increase is effective the date of the claim; and if the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2) ; 38 C.F.R. § 3.400(o)(1)(2). See also Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998). The Federal Circuit Court reaffirmed that "the plain language of [section] 5110(b)(2) ... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability). Here, the Veteran did not evidence entitlement to the higher 40 percent rating until his VA compensation examination on July 25, 2013, so that marks the effective date for this higher rating. He has never shown entitlement to an even greater rating, either prior to or since July 25, 2013. And because the results of the audiograms preceding the VA compensation examination on July 25, 2013, did not involve the Maryland CNC, they cannot serve as grounds for assigning an earlier effective date for the higher 40 percent rating, even accepting they suggested the Veteran's hearing acuity had worsened even by those earlier points in time. And as already explained, the ratings for disability compensation for hearing loss are determined by the mechanical (meaning nondiscretionary) application of the criteria in Table VI and Table VII. Lendenmann, 3 Vet. App. at 349. The evidence, as it stands, indicates the Veteran's service-connected bilateral hearing loss has warranted no more than a zero percent rating before July 25, 2013 and no more than a 40 percent rating effective that date. This amounts to a "staging" of the rating for this disability. See Hart, supra. In addition to dictating objective test results, an evaluating VA audiologist must fully describe the functional effects caused by a hearing loss disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447 (2007). See also Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Apr. 24, 2007); and 38 C.F.R. § 4.10. In Martinak, the Court noted that, unlike the Rating Schedule for hearing loss, the extra-schedular provisions of 38 C.F.R. § 3.321(b)(1) did not rely exclusively on objective test results to determine whether referral for an extra-schedular rating was warranted. Here, to this end, the July 2013 VA examiner indicated that the functional impact of the Veteran's hearing loss included difficulty hearing in noisy environments, dependence of hearing amplification (i.e., hearing aids), the need to see facial cues to discern speech, and difficulty on the telephone and in social situations. Id. The Court also has held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, the Board finds that a derivative TDIU claim is not raised by the record or in any of the Veteran's pleadings or those of his representative. Specifically, the evidence of record fails to show the Veteran is unemployable because of this service-connected disability, and he has not contended as much. Therefore, the Board finds that no further consideration of a TDIU is warranted. Id. Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 4.3, but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. Extraschedular Consideration As already alluded to when discussing the holding in Martinak, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Before discussing further entitlement to an extraschedular evaluation, the Board notes that it has considered Mittleider v. West, 11 Vet. App. 181 (1998), and has attributed all potentially service-connected symptoms to the service-connected disability. Still, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected bilateral hearing loss in that they take into account both average puretone thresholds as well as speech discrimination and provide for exceptional patterns of hearing loss. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2013). In this case, the problems reported by the Veteran regarding his bilateral hearing loss (such as a reduced ability to hear in the absence of hearing aids and in noisy environments) are specifically contemplated by the schedular rating criteria, including the effect on his daily life. In the absence of exceptional factors associated with his disability, the Board finds that the requirements for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for testicular cancer is denied. Service connection for BPH is denied. A compensable rating before July 25, 2013, and higher than 40 percent since for the service-connected bilateral hearing loss, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs