Citation Nr: 1402995 Decision Date: 01/24/14 Archive Date: 01/31/14 DOCKET NO. 10-46 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a gastrointestinal disability. 3. Entitlement to service connection for chronic obstructive pulmonary disorder (COPD), to include as due to exposure to asbestos and/or other toxic chemicals. 4. Entitlement to service connection for rhinitis, to include as due to exposure to asbestos and/or other toxic chemicals. 5. Entitlement to service connection for hydrocele, to include as due to exposure to asbestos and/or other toxic chemicals. 6. Entitlement to service connection for a low back disability. 7. Entitlement to an initial rating in excess of 10 percent for status-post left elbow dislocation with degenerative osteophyte formation. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from September 1971 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Muskogee, Oklahoma. In March 2013, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the Veteran's claims folder. The issues of entitlement to service connection for a low back disability and entitlement to an initial rating in excess of 10 percent for a left elbow disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Hypertension did not have its onset during service or within one year of separation from service and is not otherwise related to service. 2. There is a preponderance of the evidence against a nexus between a current gastrointestinal disability, to include gastroesophageal reflux disorder (GERD), and any incident in service. 3. The Veteran is not shown to have been exposed to asbestos and/or other toxic chemicals during service. 4. The competent evidence of record fails to demonstrate that any currently diagnosed COPD, rhinitis, or hydrocele, is related to the Veteran's active duty service, nor is any COPD, rhinitis, or hydrocele the result of any incident occurring during his military service, including his claimed exposure to asbestos and other toxic chemicals. CONCLUSIONS OF LAW 1. Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 2. A gastrointestinal disability, to include GERD, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 3. Service connection for COPD, to include as due to exposure to asbestos and/or other toxic chemicals, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 4. Service connection for rhinitis, to include as due to exposure to asbestos and/or other toxic chemicals, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). 5. Service connection for hydrocele, to include as due to exposure to asbestos and/or other toxic chemicals, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letter dated in March 2010 that was sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claims. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA 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 include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Board finds that VA has met these duties with regard to the claims adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in March 2010 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claims, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the March 2010 letter also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did provide such notice to the Veteran prior to the April 2010 decision that is the subject of this appeal in its March 2010 letter. With respect to the Dingess requirements, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claims, as well as the type of evidence necessary to establish a rating or effective date of an award (see letter from RO, dated in March 2010), and such notice was provided prior to the initial decision of the RO. See Dingess, supra. Accordingly, the RO provided proper VCAA notice at the required time. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claims by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. With respect to an examination, the RO did not provide the Veteran with an examination regarding his claims. Such development is necessary 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, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In this case, an examination is not warranted under 38 U.S.C.A. § 5103A(d) because there is no competent evidence that the Veteran's currently diagnosed hypertension, gastrointestinal disability, to include GERD, COPD, rhinitis, and hydrocele, are related to his period of active service, to include his claimed in-service exposure to asbestos and/or other toxic chemicals. As discussed below, the first evidence of any of the aforementioned disorders was decades after the Veteran's discharge. In addition, the Veteran's lay statements linking the aforementioned disorders to his period of active service are not competent and credible evidence and there is no other competent evidence of record linking any of the disorders to service. With respect to the Veteran's specific claim for service connection for hypertension, as explained further below, under 38 C.F.R. § 4.104, Diagnostic Code 7101, a diagnosis of hypertension is indicated by blood pressure readings at a specific threshold, rather than by objective symptomatology. Given this, the Veteran's lack of medical training or credentials renders his opinion not competent and of no probative value. Recently, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's disabilities are related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. The Veteran was afforded a videoconference hearing before the undersigned VLJ in March 2013, in which he presented oral argument. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the undersigned VLJ set forth the issues to be discussed at the hearing and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. The VLJ notified that Veteran that in order to prove his claims he had to show that his currently diagnosed hypertension, gastrointestinal disability, to include GERD, COPD, rhinitis, and hydrocele, were related to his active service. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of those elements. As such, the Board finds that consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Pertinent Laws and Regulations Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard. See Walker, supra (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). 38 C.F.R. § 3.303(b). In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Id. Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned. Id. If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim. Id. Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b). Rather, the Federal Circuit held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Id. Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required." Walker, supra. (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). Because the Veteran has been diagnosed with hypertension, and hypertension is defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be supported by evidence of a continuity of symptomatology after service. The Veteran's hypertension is also eligible for presumptive service connection. Specifically, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for cardiovascular-renal disease, to include hypertension, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). However, this presumption will be rebutted if there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). The Veteran's gastrointestinal disability, to include GERD, COPD, rhinitis, and hydrocele, are not "chronic disease(s)" listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) does not apply and, as such, the Veteran is not permitted to show continuity of symptomatology since his service as an alternative means of etiologically linking the aforementioned disabilities to his military service. See Walker, supra. Lay evidence nonetheless can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert, 1 Vet. App. at 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). III. Hypertension Based on a thorough review of the record, the Board finds that there is a preponderance of evidence against the Veteran's claim for service connection for hypertension. In the March 2013 videoconference hearing, the Veteran testified that during service, he was told "a couple of times" that his blood pressure was high but not so much that it needed to be treated or that he should be worried about it. He noted that he was diagnosed with hypertension in the 1990's or early 2000's. The Veteran maintained that his currently diagnosed hypertension was related to his period of service. The Veteran's service treatment records are negative for any complaints or findings of hypertension. In July 1973, the Veteran underwent a periodical examination. At that time, his blood pressure was 110/70 and his heart was clinically evaluated as "normal." In February 2010, the Veteran filed his claim for service connection for hypertension. At that time, in response to the question of when his disability began, the Veteran responded in "March 2009." The first evidence of record of a diagnosis of hypertension is in March 2010, over 35 years after the Veteran's discharge. VA Medical Center (VAMC) outpatient treatment records show that in March 2010, the Veteran presented himself to establish care at the VAMC. The Veteran's past medical history included hypertension. With respect to negative evidence, the Court held that the fact that there was no record of any complaint, let alone treatment, involving the Veteran's condition for many years could be highly probative. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints). The Board observes that the Veteran has a current diagnosis of hypertension. However, there is no medical evidence or competent opinion of record which links any current hypertension to the Veteran's period of military service. The Board also notes that, as there is no medical evidence of cardiovascular disease, to include hypertension, within one year subsequent to service discharge, the presumptive provisions for this disease found in 38 C.F.R. §§ 3.307 and 3.309 are not applicable. The Veteran maintains that his currently diagnosed hypertension is related to his period of active service. In this regard, the Board is aware that lay statements may, in certain circumstances, be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In ascertaining the competency and probative value of lay evidence, recent decisions have underscored the importance of determining whether a layperson is competent to identify the medical condition in question. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). In the present case, as indicated in Diagnostic Code 7101, hypertension involves the cardiovascular system and is diagnosed based upon blood pressure testing. It is not a disability capable of lay observation, such as varicose veins or tinnitus. Rather, it is far more analogous to rheumatic fever, as a disease involving internal organs. For that reason, the Veteran's lay opinion, even if considered credible, does not constitute competent evidence and is of no probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran is not otherwise competent to have observed hypertension since service, as hypertension is a cardiovascular disease process not capable of lay observation. Such a determination is the province of trained medical professionals. The Board notes that testing thresholds for blood pressure are required for a diagnosis of hypertension, as specified in 38 C.F.R. § 4.104, Diagnostic Code 7101. See 38 C.F.R. § 3.159(a)(2). Overall, the preponderance of the evidence is against the Veteran's claim for service connection for hypertension, and this claim must be denied. There is no competent evidence indicating that the Veteran had a diagnosis of hypertension during service or within one year thereafter. Further, none of the competent evidence suggests a relationship between the condition and service. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). IV. Gastrointestinal Disability Based on the record, the Board finds that service connection for a gastrointestinal disability, to include GERD, is not warranted. Although the Veteran is diagnosed with a gastrointestinal disability, currently diagnosed as GERD, the overall weight of the evidence is against a finding that this condition is etiologically related to service. In the March 2013 videoconference hearing, the Veteran testified that during service, he started to experience indigestion and took over-the-counter medications such as Tums and Rolaids. According to the Veteran, he never sought treatment for his gastrointestinal problems. He indicated that after his discharge, he continued to experience gastrointestinal problems. The Veteran maintained that he currently had a gastrointestinal disability that was related to his period of active service. The Veteran's service treatment records are negative for any complaints or findings of a gastrointestinal disability, to include GERD. In July 1973, he underwent a periodical examination. At that time, his abdomen and viscera were clinically evaluated as "normal." VAMC outpatient treatment records show that in February 1998, the Veteran was treated for longstanding epigastric and retrosternal burning which was initially controlled by Tums. The impression was active APUD versus GERD. In April 1998, the Veteran was diagnosed with GERD. In February 2010, the Veteran filed his claim for service connection for "stomach function." At that time, in response to the question of when his disability began, the Veteran responded in "February 1998." In January 2012, the RO received records from the Social Security Administration (SSA), which included a Disability Determination and Transmittal Report, dated in November 2010. The SSA Disability Determination and Transmittal Report shows that the Veteran was awarded Social Security disability benefits for disorders of the back (discogenic and degenerative) (primary diagnosis) and hernias (secondary diagnosis). In light of the above, the first medical evidence of a gastrointestinal disability, diagnosed as GERD, is in February 1998, over 23 years after the Veteran's discharge. With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years could be decisive. See Maxson v. West, supra. In this case, the only evidence supporting the Veteran's claim is his own lay opinion that he has a gastrointestinal disability, to include GERD, that is related to his period of service. The Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. The Veteran is certainly competent to testify as to symptoms such as stomach pain. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship. The Veteran is not competent in this instance to opine that his gastrointestinal disability, currently diagnosed as GERD, is related to his service because that is a complex medical question that requires medical expertise and training. Absent such credentials, the Veteran is unable to provide a competent opinion as to medical causation and, as such, his opinion does not constitute competent evidence. See 38 C.F.R. § 1.59(a)(2). The preponderance of the evidence is against finding that the Veteran has a gastrointestinal disability, to include GERD, that is etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. V. COPD, Rhinitis, and Hydrocele In the March 2013 videoconference hearing, the Veteran noted that during service, he drove a truck. According to the Veteran, at times, he had to transport toxic chemicals including solvents and oil. In addition, he reported that he had to live in a "quanson hut" that was filled with asbestos. He stated that within a year of his discharge, he started having problems breathing. Moreover, with respect to his hydrocele, he indicated that he was diagnosed with a hydrocele in the 2000's. He maintained that his currently diagnosed COPD, rhinitis, and hydrocele were related to his period of active service, to specifically include his claimed in-service exposure to asbestos and/or other toxic chemicals. In response to the question of whether any doctor had ever told him that his claimed in-service exposure to asbestos and/or other toxic chemicals caused him to develop COPD or rhinitis, the Veteran responded "no." The Veteran's service treatment records are negative for any complaints or findings of COPD, rhinitis, and/or a hydrocele. In July 1973, he underwent a periodical examination. At that time, his sinuses, lungs and chest, and genitourinary system were all clinically evaluated as "normal." VAMC outpatient treatment records show that in February 1998, the Veteran was treated for longstanding epigastric and retrosternal burning. The physical examination showed "red nasal." The pertinent impression was chronic vasomotor rhinitis. In February 2010, the Veteran filed his claims for service connection for COPD, rhinitis, and hydrocele. At that time, in response to the question of when his disabilities began, the Veteran responded in "April 1983" for his COPD; in "April 2009" for his rhinitis; and in "October 2006" for his hydrocele. VAMC outpatient treatment records show that in March 2010, the Veteran presented himself to establish care at the VAMC. The Veteran's past medical history included diagnoses of COPD and hydrocele. In regard to the Veteran's claimed in-service asbestos exposure, the Board notes there are no laws or regulations specifically dealing with asbestos and service connection. However, the VA Adjudication Procedure Manual, M21-1 (M21-1), and opinions of the Court and VA General Counsel provide guidance in adjudicating these claims. In McGinty v. Brown, the Court observed that there has been no specific statutory guidance with regard to claims for service connection for asbestosis and other asbestos-related diseases, nor has the Secretary promulgated any regulations. McGinty v. Brown, 4 Vet. App. 428, 432 (1993). However, VA has issued a circular on asbestos-related diseases, entitled Department of Veterans Benefits, Veteran's Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), that provides some guidelines for considering compensation claims based on exposure to asbestos. Id. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. (This has now been reclassified in a revision to the Manual at M21-1MR, Part IV, Subpart ii, Chapter 2, Section C.) See also VAOPGCPREC 4-00 (Apr. 13, 2000). The applicable section of Adjudication Procedure Manual M21-1 notes that inhalation of asbestos fibers can produce fibrosis and tumors. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx as well as the urogenital system (except the prostate) are also associated with asbestos exposure. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(a)(1). Some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, military equipment, etc. Exposure to any simple type of asbestos is unusual except in mines and mills where the raw materials are produced. See id. at 7.21(b)(1). The latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). See id. at 7.21(b)(2). "Asbestosis is pneumoconiosis due to asbestos particles; pneumoconiosis is a disease of the lungs caused by the habitual inhalation of irritant mineral or metallic particles." McGinty, 4 Vet. App. at 429. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs may include dyspnea on exertion and end-respiratory rales over the lower lobes. Clubbing of the fingers occurs at late stages of the disease. Pulmonary function impairment and cor pulmonale can be demonstrated by instrumental methods. Compensatory emphysema may also be evident. See Adjudication Procedure Manual, M21-1, Part VI, 7.21(c). Neither the Manual M21-1 nor the DVB Circular creates a presumption of exposure to asbestos solely from a particular occupation. Rather, they are guidelines which serve to inform and educate adjudicators as to the high exposure of asbestos and the prevalence of disease found in particular occupations, and they direct that the raters develop the record; ascertain whether there is evidence of exposure before, during, or after service; and determine whether the disease is related to the putative exposure. See Dyment v. West, 13 Vet. App. 141, 146 (1999); see also Nolen v. West, 12 Vet. App. 347 (1999); VAOPGCPREC 4-2000. The Veteran's DD Form 214, Report of Separation From Active Duty, shows that he served in the United States Army from September 1971 to October 1974. His Military Occupational Specialty (MOS) was listed as a Motor Transportation Operator. The Veteran's related civilian occupation was listed as a heavy truck driver. The Board finds that the weight of the evidence demonstrates that the Veteran was not exposed to asbestos and/or toxic chemicals during active duty service. The Board recognizes that it is the Veteran's contention that as a truck driver, he transported toxic chemicals. The Board also recognizes the Veteran's contention that while he was in the military, he lived in a "quanson hut" that was filled with asbestos. The Veteran is competent to provide evidence about matters of which he has personal knowledge; for example, he is competent to report that he experienced an event during service or that he had certain symptoms. Falzone, supra. Therefore, the Veteran is competent to testify that he was exposed to asbestos and toxic chemicals during service. However, the Board does not find the Veteran's statements regarding exposure to asbestos and toxic chemicals to be credible. Although the Veteran's MOS was as a truck driver, the Veteran's service treatment records are negative for any evidence showing that he was exposed to toxic chemicals. In addition, the Veteran's service treatment records are negative for any asbestos-related disease or any mention of asbestos exposure. The Board also finds that the record does not indicate that the Veteran has an asbestos-related disability. There is no credible evidence of the Veteran's claimed exposure. In fact, he has provided no evidence or incidents of actual exposure; he merely states he was exposed to asbestos and toxic chemicals during service. Thus, the Board finds that the Veteran's statements are not credible, are inconsistent with his MOS as a truck driver, and are not sufficient to establish that he was exposed to asbestos and/or toxic chemicals during active duty service. In the instant case, the only evidence of record supporting the Veteran's claims is his own lay opinion that his currently diagnosed COPD, rhinitis, and hydrocele, are related to his period of active service, specifically to his claimed in-service exposure to herbicides and toxic chemicals. However, as stated above, there is no credible evidence of record showing that the Veteran was exposed to herbicides and toxic chemicals during service. In addition, the Veteran's service treatment records are negative for any complaints or findings of COPD, rhinitis, and/or hydrocele, and the first medical evidence of any of the aforementioned disabilities is in February 1998, over 23 years after the Veteran's discharge. With respect to negative evidence, the Court has held that the fact that there was no record of any complaint, let alone treatment, involving the veteran's condition for many years could be decisive. See Maxson v. West, supra. The Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. The Veteran is certainly competent to testify as to such symptoms as breathing problems. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship. The Veteran is not competent in this instance to opine that his COPD, rhinitis, and/or hydrocele, is related to his service because that is a complex medical question that requires medical expertise and training. Absent such credentials, the Veteran is unable to provide a competent opinion as to medical causation and, as such, his opinion does not constitute competent evidence. See 38 C.F.R. § 1.59(a)(2). In view of the foregoing, the Board concludes that there is a preponderance of evidence against the Veteran's claims for service connection for COPD, rhinitis, and hydrocele, all to include as due to exposure to asbestos and/or toxic chemicals. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply and the claims must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a gastrointestinal disability, to include GERD, is denied. Entitlement to service connection for COPD, to include as due to exposure to asbestos and/or other toxic chemicals, is denied. Entitlement to service connection for rhinitis, to include as due to exposure to asbestos and/or other toxic chemicals, is denied. Entitlement to service connection for hydrocele, to include as due to exposure to asbestos and/or other toxic chemicals, is denied. REMAND In the March 2013 videoconference hearing, the Veteran testified that during service, he drove a truck over 70,000 miles while sitting on a bench seat. He noted that due to the "jarring" of the truck, he developed back problems. The Veteran also reported that in addition to driving the truck, he also had to load and unload shipments onto the truck. According to the Veteran, he sought treatment on one occasion but the physician just thought he was trying to get out of work and did not examine him. He indicated that he took over-the-counter medications to relieve his back pain. The Veteran stated that after his discharge, he continued to experience low back pain. He maintained that he had a current low back disability that was related to his period of active service, to specifically include his in-service back trauma due to driving trucks and loading and unloading shipments onto the truck. The Veteran's service treatment records show that in October 1971, the Veteran was treated for back pain of a one year duration. The examiner stated that the Veteran's back pain was worse with weight on his back. The physical examination showed that the Veteran had normal range of motion with no muscle spasm. In July 1972, the Veteran was treated for low back pain which was more prominent in the morning. The Board notes that the Veteran is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, in light of the Veteran's statements regarding experiencing trauma to his back while driving a truck and from loading and unloading shipments onto the truck, and given that the Veteran's MOS was as a Motor Transportation Operator, the Board finds that the Veteran's statements in regard to his in-service back trauma credible and consistent with military service. See 38 U.S.C.A. § 1154(b) (West 2002). The Board also notes that in addition to the Veteran's service treatment records confirming in-service treatment for back pain, the Veteran also maintains that after his discharge, he continued to experience chronic low back pain. The Veteran is competent to report what comes to him through his senses, which would include experiencing low back pain after service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the Board accepts as true that the Veteran had continuing low back pain after service. In June 2012, the Veteran underwent a VA examination which was conducted by QTC Services. Following the physical examination, the examiner diagnosed the Veteran with compression fracture of the lumbosacral spine, with degenerative disc disease, status post laminectomy. The examiner opined that the Veteran's low back disability was not related to his period of service. In regard to a rationale, the examiner noted that there was only one in-service treatment record, dated in October 1971, that showed treatment for back pain and there was no associated trauma. However, the examiner did not recognize that the Veteran was treated on two occasions during service for back pain: in October 1971 and again in July 1972. In addition, the examiner did not address the Veteran's in-service back trauma due to driving a truck and loading and unloading shipments onto the truck, and whether his currently diagnosed low back disability was related to such trauma. He also did not address the finding that the Veteran had low back pain during and after service. Thus, the Board is of the opinion that a new VA examination, as specified in greater detail below, should be performed in order to determine the nature and etiology of any current low back disability. VAMC outpatient treatment records show that in March 2010, the Veteran's past medical history was reported. At that time, it was noted that he had a history of two prior back surgeries. In this regard, in a VA Form 21-4142, Authorization and Consent to Release Information to the VA, dated in March 2010, the Veteran stated that he had received treatment from a private physician, Dr. R.H., of Tulsa, Oklahoma, for back pain and back surgery in August or September 2007. According to the Veteran, he did not have Dr. H.'s address but if it was needed, he would be able to obtain it. Given that VA is on notice of the potential existence of additional records from Dr. H., these records should be obtained prior to any further appellate review of this case. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see generally Murincsak v. Derwinski, 2 Vet. App. 363, 372-73 (1992). As additional action by the RO may be helpful in either obtaining such putative records, or documenting information that the medical records cannot be obtained, further development in this regard is warranted. In the March 2013 videoconference hearing, the Veteran stated that his service-connected left elbow disability had worsened. He indicated that he had pain in his left elbow, with weakness and loss of range of motion. In light of the above and in consideration of the Veteran's contentions, the Board finds that a new, more contemporaneous examination is needed prior to a final adjudication of the Veteran's current claim. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In a statement from the Veteran, dated in October 2013, he stated that he had received treatment in October 2013 at the Muskogee VAMC for his service-connected left elbow disability. Thus, inasmuch as the VA is on notice of the existence of additional records, these records should be obtained prior to any further appellate review of this case. See Bell, supra. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a complete copy of the Veteran's treatment records from the Muskogee VAMC, dated since June 2011. 2. The RO must contact the Veteran and request that he fill out an authorization form for Dr. R.H., of Tulsa, Oklahoma, with Dr. H.'s current address. If, and only if, the Veteran submits an authorization form for VA to request his records from Dr. H., the records should be requested and associated with the claims folder. If the records are not obtained, notify the Veteran of that fact and allow him an opportunity to submit the records. 3. Thereafter, the RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA orthopedic examination for the purpose of determining the nature, severity, and etiology of any back disability, to include compression fracture of the lumbosacral spine, with degenerative disc disease, status post laminectomy, and to determine the current severity of the Veteran's service-connected left elbow disability. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All necessary special studies or tests are to be accomplished, to specifically include x- rays if deemed necessary by the examiner. In regard to the Veteran's low back disability, after a review of the examination findings and the entire evidence of record, the examiner should provide an opinion on the following: Is it at least as likely as not (e.g., a 50 percent or greater probability) that any back disability that is currently present, to include compression fracture of the lumbosacral spine, with degenerative disc disease, status post laminectomy, is related to the Veteran's period of active service, to include his in-service back pain and treatment for back pain, and/or in-service back trauma due to driving a truck and loading and unloading shipments onto the truck? [The examiner must accept as true that the Veteran experienced back trauma during service due to driving a truck and loading and unloading shipments onto the truck. The examiner must also accept as true that the Veteran experienced low back pain both during and after his discharge.] The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the causal relationship; less likely weighs against the claim. If no link to military service is found, such finding and conclusion should be affirmatively stated and a complete rationale for any opinion expressed should be included in the examination report. In regard to the Veteran's service- connected left elbow disability, the examiner must conduct complete range of motion studies and describe all current left elbow symptomatology. SPECIFICALLY, the ranges of left elbow flexion and extension should be reported in degrees. The examiner should also provide a specific opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. The examiner should express this opinion in terms of the degree of additional range-of- motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare- ups, or pain. The examiner should report if there is ankylosis of the left elbow and, if so, whether it is favorable or unfavorable and the angle at which the elbow is held. The examiner should also report whether there is any flail joint of the left elbow. A complete rationale for all opinions must be provided. 4. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issues on appeal. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs