Citation Nr: 1410925	
Decision Date: 03/14/14    Archive Date: 03/20/14

DOCKET NO.  13-25 971	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a disability of the eyes.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disability.

3.  Entitlement to service connection for a bilateral knee disability.

4.  Entitlement to service connection for a respiratory disability, claimed as a residual of exposure to asbestos.

5.  Entitlement to service connection for erectile dysfunction, including as due to radiation exposure.  

6.  Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

T. Sherrard, Counsel


INTRODUCTION

The Veteran, who is the Appellant in this case, had active service from September 1954 to June 1958.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2012 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran provided testimony at a December 2013 videoconference hearing before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing is associated with the claims folder.

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.

At the December 2013 Board hearing, the Veteran raised the issue of entitlement to service connection for skin cancer and submitted medical records pertaining to treatment of skin cancer.  

While the Agency of Original Jurisdiction (AOJ) has adjudicated the issue of entitlement to service connection for a "skin disability", and has considered several disorders within that category, it has not specifically adjudicated the issue of service connection for "skin cancer", which, based on the unique facts of this case, has etiology that is unique from other skin disorders.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, if needed. 

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

The issue of entitlement to a higher initial disability rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  A November 2005 rating decision denied service connection for eye and skin disabilities; the Veteran did not file a timely notice of disagreement, nor was any new evidence or service records received within the year following that decision.

2.  The evidence associated with the claims file subsequent to the November 2005 rating decision does not relate to an unestablished fact necessary to establish the eye disability claim, so does not raise a reasonable possibility of substantiating a claim for service connection for an eye disability.

3.  The evidence associated with the claims file subsequent to the November 2005 rating decision was not previously submitted for consideration, relates to an unestablished fact necessary to establish the skin disability claim, is not redundant, and raises a reasonable possibility of substantiating the claim for service connection for a skin disability.

4.  The Veteran's fungal groin infection began during active service and has been unremitting since separation from active service.  

5.  Psoriasis did not manifest during active service, symptoms of psoriasis were not unremitting in service or since service separation, and the Veteran's currently diagnosed psoriasis is not related to active service.

6.  A preexisting right knee disability was noted on the July 1954 service enlistment examination, but was not permanently worsened in severity during or by active service; there was no event, disease, or injury manifesting a disability of the left knee during active service, symptoms of a left knee disability were not chronic in service, symptoms of arthritis of the knees did not manifest to a compensable degree within one year of separation, and symptoms of a bilateral knee disability have not been chronic since service separation.

7.  The Veteran may have been exposed to asbestos during service; the Veteran does not, however, have an asbestos-related pulmonary disability; symptoms of a respiratory disability were not unremitting in service or since service separation; and the current respiratory disability is not related to any in-service injury or disease, including in-service asbestos exposure.

8.  The Veteran does not have a radiogenic disease or a disease associated with radiation exposed veterans, did not engage in a radiation risk activity as defined under 38 C.F.R. § 3.309(d)(3)(ii), and does not qualify as a radiation-exposed veteran; there was no in-service disease or injury manifesting erectile dysfunction or unremitting symptomatology of erectile dysfunction either during active service or following service separation.


CONCLUSIONS OF LAW

1.  The November 2005 rating decision, which denied service connection for eye and skin disabilities, became final.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.302, 20.1103 (2013).

2.  The evidence received subsequent to the November 2005 rating decision is not new and material to reopen the claim of entitlement to service connection for an eye disability.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013).

3.  The evidence relating to the skin disability claim received subsequent to the November 2005 rating decision is new and material, and the claim for service connection for a skin disability is reopened.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013).

4.  Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a fungal groin infection are met.  38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).

5.  The criteria for service connection for psoriasis have not been met.  38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).

6.  The criteria for service connection for a bilateral knee disability are not met.  38 U.S.C.A. §§ 101, 1101, 1110, 1111, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).

7.  The criteria for service connection for a respiratory disability, to include as due to asbestos exposure, have not been met.  38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013).

8.  The criteria for service connection for erectile dysfunction, to include as due to radiation exposure, have not been met.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.311 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Whether Reopening Eye and Skin Disability Claims

In July 2005, the Veteran filed an initial claim for service connection for eye and skin disabilities.  The claims were denied in a November 2005 rating decision, which found that there was no evidence of a nexus between the current disabilities and active service.  The Veteran did not file a timely notice of disagreement (NOD), and no evidence or new service records were received within one year of the RO decision.  38 C.F.R. § 3.156(b) and 3.156 (c) (2013).  Consequently, the November 2005 rating decision became final.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

In August 2010, the Veteran filed a request to reopen his claim for service connection for eye and skin disabilities.  In the January 2012 rating decision that is the subject of this appeal, the RO found that no new and material evidence had been received and denied reopening of the skin disability claim, and reopened and denied the eye disability claim.  

Based on the procedural history outlined above, the issue for consideration with respect to the Veteran's claims is whether new and material evidence has been received to reopen the claims of entitlement to service connection for eye and skin disabilities.  The Board must make an independent determination in this regard.     

As noted above, in the January 2012 rating decision on appeal, the RO denied reopening of the skin disability claim, and reopened and denied the eye claim on the merits.  Notwithstanding the determination of the RO regarding reopening or not reopening the claims, the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits.  Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996).  

"New" evidence is defined as evidence not previously received by agency decision-makers.  "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2013).

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999).  If it is determined that new and material evidence has been received, the claim must be reopened.  The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for his claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (eliminating the previous requirement of a well-grounded claim).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low."  See Shade v. Shinseki,
24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. At 118.  The evidence received to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received.  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The evidence of record at the time of the last final November 2005 rating decision denying service connection for eye and skin disabilities included service treatment records, service personnel records, post-service treatment records, and statements from the Veteran.  Service treatment records showed a single complaint of a foreign body sensation in the left eye, but nothing was found on examination, and the separation examination was negative for any eye problems or vision loss.  The service treatment records were negative for any history, complaints, symptoms, findings, treatment, or diagnosis of a skin disability.  

Post-service private treatment records showed a diagnosis of psoriasis in July 2001, and VA treatment records showed that he reported that the psoriasis started in service in August 2004.  VA treatment records from 2001 to 2005 showed diagnoses of nevus, chorioretinal scar, pseudohole, and cataract in the left eye, and bilateral hyperopic astigmatism and presbyopia, but did not include any history or statements that related the eye conditions to service.    

Based on this evidence, the RO denied service connection for the eye and skin disabilities, finding no evidence of a nexus between the current disabilities and active service.  

Evidence added to the record since the time of the last final denial in November 2005 includes additional post-service VA treatment records, statements of the Veteran, and a VA examination and opinion regarding the skin disability.  VA treatment notes continue to show evaluation and treatment for the previously diagnosed eye conditions, but do not tend to demonstrate a nexus between the current eye conditions and any in-service event, injury, or disease.  The July 2013 VA examination report includes a favorable nexus opinion with regard to the Veteran's fungal groin infection.    

The evidence added to the record since the previous November 2005 denial of the eye claim does not constitute new and material evidence.  Although the evidence is new, in that it was not associated with the claims file prior to the last final denial in November 2005, it is not material because it does not relate to an unestablished fact necessary to substantiate the claim - that the Veteran has a current eye disability that was caused by an event, injury, or disease during active service - and does not raise a reasonable possibility of substantiating the claim for service connection for an eye disability.  Therefore, the Board finds that the new and material criteria under 38 C.F.R. §§ 3.156(a) have not been satisfied, and the claim for service connection for an eye disability cannot be reopened.  

However, with regard to the skin disability claim, the Board finds that the evidence added to the record since the previous November 2005 denial constitutes new and material evidence.  The evidence is new and not redundant, in that it shows the possibility of a nexus between a currently diagnosed skin condition and active service, which is an unestablished fact that is necessary to substantiate the claim.  The additional evidence raises a reasonable possibility of substantiating the claim for service connection for a skin disability; therefore, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for a skin disability is reopened.  

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. 
§§ 1110, 1131; 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, such as arthritis, noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).

Unlike the claimed knee arthritis, the remainder of the conditions at issue are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to those conditions.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there 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).

Service connection may also be granted for aggravation of a pre-existing injury suffered or disease contracted in line of duty.  A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153.  Aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. § 3.306.  Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  Accordingly, "a lasting worsening of the condition" - that is, a worsening which existed not only during service and/or at the time of separation but also continued thereafter - is required.  See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996).

A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

For defects, infirmities, or disorders not noted when a veteran is examined, accepted and enrolled for service, the burden lies with the government to show, by clear and unmistakable evidence, that the defect, infirmity, or disorder both pre-existed and was not aggravated by service.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

With regard to the presumption of sound condition at entry into service, 
38 C.F.R. § 3.304(b) provides as follows:

Only such conditions as are recorded in examination reports are to be considered as noted.

(1)  History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception.  Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease.  They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.

(2)  History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account.

(3)  Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact.  Other evidence will be considered as though such statement were not of record.

In addition, 38 C.F.R. § 3.303(c) provides that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles the existence of a disability prior to service is established, no additional or confirmatory evidence is necessary.  This regulation also states that where there is the notation or discovery during service of such residual conditions as scars, or absent, displaced, or resected parts of organs with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they pre-existed service.

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, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while 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, 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").

Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2).  The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  

Generally, the degree of probative value which 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 a veteran's claims file.  See 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.  See 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 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).

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); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board has reviewed all the evidence in the Veteran's claims 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 a veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service Connection for a Skin Disability

The Veteran contends that he has two skin disorders that are related to active service.  First, he avers that he developed a fungal condition in the groin area during active service due to not being able to shower for long periods of time.  Second, he avers that his currently diagnosed psoriasis is related to the incurrence of multiple sunburns in the Libyan desert during active service.  He avers that he sought treatment for the fungal infection and for sunburn during service at a British outpost clinic, but that records of this treatment are not available.       

The Veteran's service personnel records confirm that he was sent out on survival tests in the desert of Libya during active service.  Thus, the nature and circumstances of his service are consistent with his contentions regarding the mechanism of his skin disabilities, and the Board finds his contentions regarding inability to shower for long periods of time and repeated sunburn to be credible.  

Moreover, the Board finds that the evidence is at least in equipoise as to whether the currently diagnosed fungal infection of the groin is related to active service.  The Veteran has made credible statements that the fungal infection began during active service.  He is competent to testify as to the onset of the fungal infection, as it is observable by a layperson.  See Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d at 1336.  

In addition, the July 2013 VA examiner opined that it is at least as likely as not that the fungal groin infection is related to the Veteran's period of service in Libya.  The 2013 VA opinion is competent and probative medical evidence because it is factually accurate and is supported by an adequate rationale.  The VA examiner was informed of the pertinent evidence, reviewed the claims file, interviewed and examined the Veteran, and fully articulated the opinion.  

In summary, based on the Veteran's competent and credible statements regarding the inception of the fungal infection during active service and the 2013 VA examiner's favorable nexus opinion, with the resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a fungal infection of the groin area are met.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

However, with regard to the claimed psoriasis, the Board finds that service connection is not warranted.  After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain an injury or disease of the skin manifesting psoriasis during active service, nor were symptoms of psoriasis unremitting during active service.  Service treatment records do not demonstrate complaints, findings, diagnosis, or treatment of any skin disorders during service, and clinical evaluation of the skin is marked as "normal" on the May 1958 separation examination report.  

Further, the Veteran has not contended that his psoriasis began during active service; rather, he has stated that he experienced sunburn during active service, and that this, in turn, caused his psoriasis.  

Next, having reviewed the evidence of record, the Board finds that the weight of the evidence is against a finding that the Veteran's current psoriasis is related to active service.  Symptoms of psoriasis have not been unremitting since service separation in June 1958.  Following service separation in June 1958, the evidence of record shows no mention of psoriasis symptoms until 2001, when private treatment records indicate the Veteran was treating his psoriasis with topical and light therapy.  

The absence of post-service complaints, findings, diagnosis, or treatment for more than 40 years after service separation until 2001 is one factor that tends to weigh against a finding of unremitting symptoms of psoriasis after service separation.  See Buchanan (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible).  

While the Veteran is competent to report the onset of his psoriasis, it appears in his more recent assertions made in the context of the current disability claim of unremitting psoriasis symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record (including his own prior statements), both in service and after service, and are not reliable.  See Charles v. Principi, 16 Vet. App. 370 (2002).  The Board finds that the Veteran's assertion of unremitting psoriasis symptoms after service is not accurate because it is outweighed by other evidence of record that includes the more contemporaneous service separation examination report which shows a normal skin evaluation, and the lack of any documentation of reports or treatment for psoriasis symptoms until 2001.  As such, the Board does not find that the evidence sufficiently supports unremitting psoriasis symptomatology since service so as to warrant a finding of a nexus between the current psoriasis and active service. 

Moreover, the Board finds that no competent medical opinions are of records which support a relationship between the current psoriasis and active service.

Here, the Veteran was afforded a VA examination in July 2013, as mentioned above.  The VA examiner reviewed the claims file, including service treatment records, and conducted an interview and examination of the Veteran.  The examiner assessed psoriasis, and opined that the psoriasis was less likely than not incurred in or caused by an in-service injury, event, or illness, reasoning that psoriasis is due to faulty programming of the immune system, and is not exposure based.  Moreover, the examiner observed that psoriasis was first documented in medical records in 2001, many years after service separation.  

As noted above, the 2013 VA opinion is competent and probative medical evidence because it is factually accurate, and is supported by an adequate rationale.  The VA examiner was informed of the pertinent evidence, reviewed the claims file, interviewed and examined the Veteran, and fully articulated the opinion.  The opinion is fully supported by the service and post-service treatment records.    

Moreover, there have been no physicians who have related the Veteran's current psoriasis to his active service.  Thus, the probative nexus opinion on file weighs against a finding of service connection for psoriasis.

Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's current psoriasis and his military service, including no credible evidence of unremitting symptoms of psoriasis during active service, unremitting symptomatology of psoriasis following service separation, or competent medical evidence establishing a link between the currently diagnosed psoriasis and active service.  Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for psoriasis, and outweighs the Veteran's more recent contentions regarding in-service unremitting psoriasis symptoms and post-service psoriasis symptoms.  

For these reasons, the psoriasis claim must be denied.  Because the preponderance of the evidence is against the claim for psoriasis, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Service Connection for Bilateral Knee Disability

The Veteran contends that he had a preexisting bilateral knee disability that was aggravated during active service.  He testified at the December 2013 Board hearing that he had injured both knees prior to enlistment while playing football, and that he had to have his knees taped and fluid drained from the knees prior to service.  Further, he stated that activities such as running during basic training aggravated his bilateral knee condition.  

After a review of all the evidence of record, lay and medical, the Board finds that the evidence demonstrates that the Veteran had a right knee disability that preexisted active service.  The July 1954 service enlistment examination report indicates abnormal clinical evaluation of the lower extremities, and notes that the Veteran had injured the right knee while playing football prior to enlistment, and that his right knee sometimes bothered him after prolonged walking.  

Because a right knee disability was "noted" at the July 1954 service enlistment examination, the presumption of soundness at service entrance did not attach regarding the preexisting right knee disability.  38 U.S.C.A. § 1111.  Therefore, the question before the Board is whether the preexisting right knee disability was aggravated by active service.

Moreover, although a left knee disability was not noted at the time of service enlistment, the Board finds, as discussed in detail below, that a left knee disability did not manifest itself during active service, and, thus, the presumption of soundness does not attach.  38 U.S.C.A. § 1111.  Therefore, the question before the Board with regard to the left knee disability is whether it was incurred during or caused by active service.  

Considering all the evidence of record, as it bears on the question of aggravation in service, the Board finds that the weight of the evidence demonstrates that the Veteran's right knee disability was not aggravated, that is, was not permanently worsened in severity, by active service.  Moreover, after a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that there was no event, injury, or disease manifesting a disability of the left knee during active service, and that the weight of the evidence demonstrates that symptoms of a left knee disability were not chronic in service.  The Board will not explain:   

Service treatment records are entirely negative for any signs, symptoms, complaints, reports, treatment, or diagnosis of a knee disability.  Moreover, at the May 1958 separation examination, the Veteran checked "no" next to "trick or locked knee," "bone, joint, or other deformity," and "arthritis or rheumatism," and clinical evaluation of the lower extremities was marked as normal.  

At this point in time, the Veteran himself provides highly probative clear evidence against his own claim.  

The Board next finds that the weight of the evidence demonstrates that symptoms of a bilateral knee disability have not been continuous since separation from active service in June 1958.  As noted above, the May 1958 separation examination report is negative for any report or finding of a disability of the knees.  Following separation from service in June 1958, the evidence of record does not show any complaints, diagnosis, or treatment for knee symptoms until 2004, when the Veteran sought treatment for knee pain after falling off of a lawn mower.    

The absence of post-service complaints, findings, diagnosis, or treatment for 46 years after service separation until 2004 is one factor that tends to weigh against a finding of chronic symptoms of a knee disability after service separation.  See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible).    

Additional evidence demonstrating that symptoms of a bilateral knee disability have not been chronic since service separation include the history provided by the Veteran at the time he sought treatment for knee pain in 2004.  Namely, he stated that he had fallen off of a lawn mower, and did not mention any prior knee problems or knee problems since active service, again providing highly probative factual evidence against his own claim.

VA treatment notes from August 2011 indicate yet another post-service knee injury when the Veteran tripped and fell on his knee.  Again, the Veteran did not provide any history of knee pain since active service.  The occurrence of these post-service knee injuries combined with the Veteran's failure to mention knee pain since active service in the context of seeking treatment is highly probative evidence against his claim that his bilateral knee disability was aggravated or incurred in service.  

Further, VA treatment notes from May 2005 list a diagnosis of arthritis of the back and hips, but not of the knees (nor do the notes include any other diagnosis pertaining to the knees).  It is presumed that the treatment notes would include all joints affected by arthritis; thus, the absence of knee arthritis as a diagnosis is probative evidence against the Veteran's claim.  

Based on all the evidence of record, the Board finds clear and unmistakable evidence that the current knee disability was no aggravated by the Veteran's service.  In this regard, it is important for the Veteran to understand that it is the Veteran's own prior statements that provide significant evidence in support of this finding. 

The Board also finds that the preponderance of the evidence demonstrates that arthritis of the knees did not manifest to a compensable degree within one year of service separation.  The preponderance of the evidence demonstrates no arthritis symptoms during the one year period after service, and no diagnosis or findings of arthritis of any severity during the one year post-service presumptive period.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013) (degenerative and traumatic arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the joint involved, and can be assigned a 10 percent evaluation if limitation of motion is noncompensable).  Indeed, the evidence does not demonstrate a diagnosis of arthritis until 2010, when x-ray studies showed degenerative changes in the knees.  For these reasons, the Board finds that arthritis did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for arthritis are not applicable in this case.  38 C.F.R. §§ 3.307, 3.309 (2013).

With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had knee symptoms since separation from service in June 1958, the Board finds that, while the Veteran is competent to report the onset of knee symptoms, his recent reports of continuous knee symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable.  See Charles, 16 Vet. App. 370.  The Board finds that the statements of the Veteran as to continuous knee symptoms after service are not accurate because they are outweighed by other evidence of record, including his own prior statements, that includes the more contemporaneous service treatment records which are negative for any knee problems, the lack of any post-service documentation of treatment or diagnosis of a knee disability for 46 years after service separation until 2004 (and even then, treatment was sought after a post-service injury), the Veteran's failure to relate his knee problem to military service while seeking treatment in 2004, and the Veteran's claims for service connection for other disabilities in 2005 with no mention of a knee problem.  All of these factors provide highly probative evidence against this claim.  

The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim for service connection in 2005, but did not mention any knee symptoms at that time.  This suggests to the Board that there was no pertinent knee symptomatology at that time.  While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service (particularly if, as the Veteran contends, he has had this problem for decades).  In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits.  In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted.  Thus, the Veteran's inaction regarding a claim for a bilateral knee disability, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain a bilateral knee disability in service, or the lack of bilateral knee disability symptomatology at the time he filed the claim, or both.

In sum, based on the evidence of record, the preponderance of the competent evidence demonstrates no relationship between the Veteran's current bilateral knee disability and his military service, including no credible evidence of aggravation of the Veteran's right knee disability during active service, an in-service disease or injury manifesting a left knee disability, chronic symptoms of a bilateral knee disability during active service, or chronic symptoms of a bilateral knee disability following service separation, which would serve either as a nexus to service or as the factual basis for a favorable medical nexus opinion.  

Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a bilateral knee disability, and outweighs the Veteran's more recent contentions regarding in-service chronic knee problems and post-service knee problems.  For these reasons, the claim must be denied.  

Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.



Service Connection for a Respiratory Disability

The Veteran contends that his current respiratory disability was caused by exposure to asbestos during active service.  Specifically, he avers that he was exposed to asbestos in the course of performing his repairs to armory clutches and brakes.  

There is no specific statutory guidance with regard to asbestos related claims, nor has the VA Secretary promulgated any specific regulations in regard to such claims.  However, VA has issued a circular on asbestos-related diseases.  DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos.  The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, para. 7.21.  In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI.  See M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chapter 2, Section C, Topic 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos."  The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols provided in the DVB Circular guidelines.  See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). 

Subpart ii of M21-1MR Part IV lists some of the major occupations involving exposure to asbestos including 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 and pipe products, and military equipment.  M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. 

VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). 

With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease.  M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988).  VA satisfied the above requirements by obtaining the Veteran's service personnel records and asking the Veteran questions specific to his claimed asbestos exposure in its October 2010 letter. 

It should be noted that for many asbestos related diseases, the latency period varies from ten to forty-five or more years between first exposure and development of disease.  M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 9(d).   

In this case, the Veteran's military occupational specialty as an auto repairman, performing duties such as repairing asbestos-covered brake lines and armory clutches, is considered one of the major occupations involving exposure to asbestos.  See VA Adjudication Manual M21-MR, Part IV.ii.2.C.9.  Thus, affording reasonable doubt in favor of the Veteran, the Board does not dispute that the Veteran may have been exposed to asbestos during active service. 

In addition to finding the Veteran had in-service exposure to asbestos, competent evidence is required for a determination that the Veteran has an asbestos-related disability, and that asbestosis or another asbestos-related disorder is etiologically related to asbestos exposure in service.  After a review of the evidence, lay and medical, the Board finds that the Veteran does not have an asbestos-related respiratory disorder or other respiratory disorder that is due to any in-service injury or disease, including in-service asbestos exposure.

After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a respiratory injury or disease in service, and that symptoms of a respiratory disorder were not unremitting during active service.  There is no documentation of signs, symptoms, complaints, or treatment of a respiratory disorder in the service treatment records.  Moreover, at the May 1958 separation examination, the Veteran checked "no" next to "asthma" and "shortness of breath" on his Report of Medical History.  

The Board next finds that the weight of the evidence demonstrates that respiratory disorder symptoms have not been unremitting since service separation in June 1958.  Following service separation in June 1958, the evidence of record shows no complaints, diagnosis, or treatment for respiratory problems until 2003, when the Veteran sought treatment for shortness of breath, and was diagnosed with chronic obstructive pulmonary disease (COPD) and, by the following year, asthma.  The absence of post-service complaints, findings, diagnosis, or treatment for 45 years after service is one factor that tends to weigh against a finding of unremitting respiratory disorder symptoms after service separation.  See Buchanan, 451 F.3d at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). 

Other evidence of record showing that respiratory disorder symptoms were not unremitting since service separation includes the history provided by the Veteran when he sought treatment for shortness of breath in 2003.  He stated that he had experienced shortness of breath for the past four to five months, and denied any personal history of asthma.   

With regard to the Veteran's assertions that his respiratory disability has been unremitting since service separation, the Board finds that, while the Veteran is competent to report the onset of his respiratory disability, his recent report of unremitting symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable.  See Charles, 16 Vet. App. 370.  The Board finds that the Veteran's current assertion (it appears, but this is unclear) of unremitting respiratory disability symptoms after service is not accurate because it is outweighed by other evidence of record that includes the more contemporaneous service separation examination report which shows a normal evaluation of the lungs and denial of any respiratory symptoms by the Veteran, the lack of any documentation of reports or treatment for respiratory symptoms until 2003, and the Veteran's claims for service connection for other disabilities in 2005 with no mention of a respiratory problem.  

As noted above, the Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage, 10 Vet. App. at 496); however, here, the Veteran filed a claim for service connection in 2005, but did not mention any respiratory symptoms at that time.  This again suggests to the Board that there was no pertinent respiratory symptomatology at that time.  While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service.  In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits.  In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted.  Thus, the Veteran's inaction regarding a claim for a respiratory disability, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain a respiratory disability in service, or the lack of respiratory disability symptomatology at the time he filed the claim, or both.  As such, the Board does not find that the evidence sufficiently supports unremitting respiratory disability symptomatology since service so as to warrant a finding of a nexus between the current respiratory disability and active service.   

The Board has considered the Veteran's contention that his current respiratory disability is related to active service.  However, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions.  See Jandreau; see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology).  As such, as lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a specific disability.  Furthermore, the question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address.  Jandreau.  In this regard, the treatment records fail to note asbestosis or a lung disability secondary to asbestosis and the Veteran himself simply lacks all qualification to diagnosis himself with asbestosis.  There is simply nothing to indicate a problem related to asbestosis  exposure more than one-half century ago. 

In sum, based on the evidence of record, the preponderance of the competent evidence demonstrates no relationship between the Veteran's current respiratory disability and his military service, including as due to asbestos exposure, and including no in-service disease or injury manifesting a respiratory disability, unremitting symptoms of a respiratory disability during active service, or unremitting symptoms of a respiratory disability following service separation, which would serve either as a nexus to service or as the factual basis for a favorable medical nexus opinion.  

For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a respiratory disability, including as due to asbestos exposure, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Service Connection for Erectile Dysfunction

The Veteran contends that he has erectile dysfunction that is related to active service.  Specifically, he avers that he was exposed to radiation from vehicles and aircraft during active service, and that this caused his erectile dysfunction.  He testified at the Board hearing that he wore a dosimeter during active service to monitor the amount of radiation to which he was exposed.  

In general, service connection for a condition which is claimed to be attributable to ionizing radiation exposure during service may be established in one of three different ways.  First, it may be presumptively service connected under 38 U.S.C. § 1112(c) and 38 C.F.R. 3.309(d) for radiation-exposed veterans.  Second, it may be service-connected on a direct basis after specified development procedures are conducted under the special framework of 38 C.F.R. § 3.311 if the claimed entity is a radiogenic disease.  Third, even if it is not a listed disease under § 3.309 or a radiogenic disease under § 3.311, direct service connection can be established by showing that the disease was incurred during or aggravated by service, including presumptive service connection for chronic disease.  See Combee v. Brown, 34 F.3d 1039, 1043 (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); Hardin v. Brown, 11 Vet. App. 74, 77 (1998). 

Regarding service connection on a presumptive basis, if a veteran has a listed disease under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d) and was a radiation-exposed veteran, then it will be presumed that the disease was incurred in service, and service connection is established for the disease.  The Board notes that erectile dysfunction is not among the diseases listed under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d).  Moreover, the Board finds that the Veteran was not involved in a "radiation risk activity" as defined under the above regulations, and was thus not a radiation-exposed veteran for purposes of presumptive service connection.  

The Board emphasizes that "radiation-exposed veteran" has a specific regulatory definition, and the Board's finding in this regard does not negate the possibility of actual exposure to ionizing radiation. 

Radiation risk activities are specifically defined.  They include onsite participation in a test involving the atmospheric detonation of a nuclear device, participation in the occupation of Hiroshima or Nagasaki between August 6, 1945, and July 1, 1946, being a POW in Japan (or service in Japan immediately after internment) with opportunity for exposure comparable to occupation forces in Hiroshima or Nagasaki, service for at least 250 days before 1992 at gaseous diffusion plant in Paducah, Kentucky, or Portsmouth, Ohio, or at K25 area at Oak Ridge, Tennessee, and service before January 1, 1974, on Amchitka, Island, if exposed to ionizing radiation during duty related to Long Shot (1965), Milrow (1969) or Cannikin (1971) underground nuclear tests.  See 38 C.F.R. § 3.309(d)(3)(ii).

The Veteran does not assert that he engaged in any of the activities set out under 38 C.F.R. § 3.309(d)(3)(ii) and there is no other evidence of such activities in this case.  There is also no basis for further development regarding such radiation risk activities.  See Earle v. Brown, 6 Vet. App. 558 (1994) (holding that, in determining whether the veteran participated in radiation-risk activities, VA has the duty to gather all relevant evidence from various sources of information).  As the Veteran does not contend, and the evidence does not otherwise suggest, that he engaged in the radiation risk activities set out above, no further development is warranted on this question.

The next inquiry must focus on whether the Veteran may be entitled to special development procedures for determining whether the particular disease claimed may be related to exposure to ionizing radiation.  While 38 C.F.R. § 3.311 does not provide presumptive service connection for radiogenic disease, it does provide special procedures to help a veteran prove his or her claim on a direct basis.  Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997).  The first step in this analysis is to determine whether the Veteran has a radiogenic disease.  Diseases currently listed in 38 C.F.R. § 3.311(b)(2)(i) - (xxiv) are as follows: All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; all cancers; multiple myeloma; posterior subcapsular cataracts; non-malignant thyroid nodular disease parathyroid adenoma; lymphomas other than Hodgkin's disease.  In addition, a claimant may cite or submit competent scientific or medical evidence that the claimed condition is a radiogenic disease.  38 C.F.R. § 3.311(b)(4).

In this case, the Veteran has not contended and the evidence does not show that he has any of the radiogenic diseases listed under 38 C.F.R. § 3.311(b)(2)(i) - (xxiv).  Accordingly, development specified to determine a radiation dose estimate and for referral of the claim to the Under Secretary for Benefits is not necessary, as such development is contingent upon a finding that that a veteran has a radiogenic disease.  38 C.F.R. § 3.311(a).

Finally, the Board must determine whether the Veteran could be entitled to service connection for the claimed disease or injury under the general provisions governing the awards of VA compensation.  See Combee at 1043; Hardin v. West, 11 Vet. App. 74 (1998).  

Turning to consideration of direct service connection, after a review of all the evidence, lay and medical, the Board finds that the weight of the evidence is against a finding of any injury or disease manifesting erectile dysfunction during service, and that the evidence also shows that there were no unremitting symptoms of erectile dysfunction during service.  The service treatment records, including the May 1958 separation examination report, reflect no signs, symptoms, treatment, or diagnosis of erectile dysfunction. 

The Board next finds that the weight of the evidence demonstrates that erectile dysfunction symptoms have not been unremitting since service separation in June 1958.  Following service separation in June 1958, the evidence of record shows no complaints, diagnosis, or treatment for erectile dysfunction until 2010, when the Veteran filed his claim for service connection.  The absence of post-service complaints, findings, diagnosis, or treatment for 52 years after service is one factor that tends to weigh against a finding of unremitting erectile dysfunction symptoms after service separation.  See Buchanan at 1337 (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence).   

With regard to the Veteran's assertions that his erectile dysfunction has been unremitting since service separation, the Board finds that, while the Veteran is competent to report the onset of his erectile dysfunction, his recent report of unremitting symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable.  See Charles.  The Board finds that the Veteran's assertion of unremitting erectile dysfunction symptoms after service is not accurate because it is outweighed by other evidence of record that includes the more contemporaneous service separation examination report which is negative for any symptoms or report of erectile dysfunction by the Veteran, the lack of any documentation of reports or treatment for erectile dysfunction until 2010, and the Veteran's claims for service connection for other disabilities in 2005 with no mention of erectile dysfunction.  

As above, the Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage); however, here, the Veteran filed a claim for service connection in 2005, but did not mention any erectile dysfunction symptoms at that time.  This suggests to the Board that there was no pertinent erectile dysfunction symptomatology at that time.  While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service.  In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits.  In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted.  Thus, the Veteran's inaction regarding a claim for erectile dysfunction, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain erectile dysfunction in service, or the lack of erectile dysfunction symptomatology at the time he filed the claim, or both.  As such, the Board does not find that the evidence sufficiently supports unremitting erectile dysfunction symptomatology since service so as to warrant a finding of a nexus between the current erectile dysfunction and active service.   

The Board has considered the Veteran's contention that his current erectile dysfunction is related to active service.  However, while the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions.  See Jandreau; see also Barr (lay testimony is competent to establish the presence of observable symptomatology).  As such, as lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis of a specific disability.  Furthermore, the question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address.  Jandreau.

Based on this evidence, the Board finds that the weight of the competent evidence demonstrates that the Veteran does not have a radiogenic disease or a disease associated with radiation exposed veterans; there is no relationship between the Veteran's current erectile dysfunction and military service, including in-service radiation exposure; and no credible evidence of an in-service disease or injury manifesting erectile dysfunction or unremitting symptomatology of erectile dysfunction either during active service or following service separation, which would serve either as a nexus to service or as the factual basis for a favorable medical nexus opinion.  

For these reasons, the Board finds that the weight of the evidence is against the claim for service connection for erectile dysfunction, including as due to radiation exposure, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 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 notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains 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, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits.

In a timely October 2010 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain.  The letter informed the Veteran of the basis for the previous denial of the eye and skin disability claims and advised him that new and material evidence would be necessary to reopen those claims, defining what the new and material evidence would need to address.  The letter also described how VA determines disability ratings and effective dates.  

The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private treatment records, a VA examination report, and the Veteran's statements, including his testimony at the December 2013 Board hearing.  

The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above 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.  Here, during the December 2013 Board hearing, the undersigned Veterans Law Judge asked questions pertaining to the criteria necessary for establishing his claims, including regarding specific evidence that may help substantiate his claims.  Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error.

A VA examination and opinion was obtained in July 2013 with regard to the question of whether the Veteran's skin disability was caused by or incurred during active service.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr, 21 Vet. App. at 312.  The Board finds that the July 2013 VA examination and opinion obtained in this case is adequate as to the question of whether the Veteran's skin disability is related to active service.  The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as a thorough interview and examination of the Veteran.  The VA nexus opinion considered all of the pertinent evidence of record, to include VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the skin disability claim has been met.  38 C.F.R. § 3.159(c)(4).

The Board acknowledges that no VA examination or opinion has been obtained with regard to the eye disability claim.  However, in the context of claims to reopen, the duty to provide an examination or obtain an opinion is a "conditional or provisional duty."  Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007); see also 38 C.F.R. § 3.159(c).  In this case, the Board has determined that new and material evidence has not been received to reopen the eye disability claim.  Thus, VA's duty to provide an examination or obtain an opinion with regard to the eye disability claim is extinguished.  Woehlaert, 21 Vet. App. at 463.

Further, the Board acknowledges that the Veteran has not been afforded a VA medical examination specifically geared to the claimed service connection for bilateral knee and respiratory disabilities and erectile dysfunction; however, the Board finds that a VA examination is not necessary in order to decide these issues.  Two pivotal Court cases exist that address the need for a VA examination.  Those 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, the Secretary 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 that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim.  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) indicate that those symptoms may be associated with her active military service. 

In this case, the Veteran's service treatment records are negative for any complaints of or treatment for bilateral knee and respiratory disabilities and erectile dysfunction.  Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to bilateral knee and respiratory disabilities and erectile dysfunction in service, and there is no duty to provide a VA medical examination.  See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination).  As explained in this decision, the Board also finds that the weight of the evidence demonstrates no unremitting symptoms of bilateral knee and respiratory disabilities and erectile dysfunction in service and no unremitting symptoms of bilateral knee and respiratory disabilities and erectile dysfunction since service separation.  Because there is no in-service injury or disease to which a competent medical opinion could relate the current disabilities, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for bilateral knee and respiratory disabilities and erectile dysfunction.  See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). 

The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an 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 bilateral knee and respiratory disabilities and erectile dysfunction would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value.  In other words, any medical opinion which purported to provide a nexus between the Veteran's bilateral knee and respiratory disabilities and erectile dysfunction and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value.  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, 5 Vet. App. at 461 (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 an in-service injury, disease, 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 because there is no reasonable possibility that such assistance would aid in substantiating the bilateral knee and respiratory disabilities and erectile dysfunction claims.  See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). 

In any event, the Board finds there is enough evidence in this case, including some of the Veteran's own prior statements, to fully adjudicate these issues at this time. 

Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

New and material evidence not having been received, the appeal to reopen the claim of entitlement to service connection for an eye disability is denied.

Service connection for a fungal groin infection is reopened and granted.  

Service connection for psoriasis is reopened and denied.

Service connection for a bilateral knee disability is denied.  

Service connection for a respiratory disability is denied.

Service connection for erectile dysfunction is denied.  


REMAND

In a July 2013 rating decision, the RO granted service connection for PTSD and assigned and initial 30 percent disability rating.  At the December 2013 Board hearing, the Veteran expressed disagreement with the initial disability rating assigned for PTSD in the July 2013 rating decision; the Board finds that this constitutes a Notice of Disagreement (NOD).  The RO has not had the opportunity to furnish the Veteran with a Statement of the Case (SOC) which addresses the issue of entitlement to a higher initial disability rating for PTSD.

In such cases, under judicial precedent, the appellate process was initiated by the NOD, and the appellant is entitled to an SOC on the issue.  See Manlincon v. West, 12 Vet. App. 238 (1999).  Accordingly, the issue of entitlement to an initial disability rating in excess of 30 percent for PTSD must be remanded to the RO for additional action.

Accordingly, the issue of entitlement to an initial disability rating in excess of 30 percent for PTSD is REMANDED for the following action:

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

The RO should consider the issue of entitlement to an initial disability rating in excess of 30 percent for PTSD; if the benefits sought cannot be granted, the RO should issue a Statement of the Case in accordance with applicable law and regulations.  The Veteran, and his representative, should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue.  If a timely substantive appeal is not filed, the claim should not be certified to the Board.  If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs