Citation Nr: 1441737 Decision Date: 09/18/14 Archive Date: 09/30/14 DOCKET NO. 12-07 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a bilateral fungal foot disorder. 2. Entitlement to service connection for residuals of right kidney cancer and right kidney removal, claimed as due to exposure to herbicides or as a result of asbestos exposure. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD A.J. Tracy, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1962 to August 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in pertinent part, denied service connection for a bilateral fungal foot disorder and denied service connection for residuals of right kidney cancer and right kidney removal. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Veterans Benefits Management System" and on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran has a current disability of bilateral fungal foot disorder. 2. The Veteran did not sustain an in-service injury or disease relating to a bilateral fungal foot disorder. 3. The Veteran's bilateral fungal foot disorder is not etiologically related to active service. 4. The Veteran had service in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides in service. 5. The Veteran did not sustain an in-service injury or disease of the kidneys. 6. The Veteran was not exposed to asbestos during service. 7. The Veteran has a current disability of residuals from right kidney cancer and right kidney removal. 8. Chronic symptoms of right kidney cancer were not manifested during service. 9. Symptoms of right kidney cancer were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation. 10. The Veteran's tasks during service did not require the Veteran to enter the areas of ships that would contain asbestos and the Veteran was not exposed to airborne asbestos during service. 11. The Veteran's right kidney cancer and right kidney removal is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral fungal foot disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria for service connection for residuals from a right kidney cancer and right kidney removal, including as a result of herbicide exposure and asbestos exposure, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005) (rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006)). Here, notice was provided to the Veteran in September 2010, prior to the initial adjudication in November 2010. The Veteran was notified of the evidence not of record that was necessary to substantiate the appeal, as well as of VA and the Veteran's respective duties for obtaining evidence. The September 2010 letter also notified the Veteran of VA's practices in assigning disability evaluations and effective dates. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issues adjudicated herein. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include service treatment records (STRs), private treatment records, lay statements, and photographs submitted by the Veteran. Neither the Veteran nor the representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. In November 2010, the Veteran informed VA that he had no additional information or evidence to submit in support of the claims. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to service connection for a bilateral fungal foot disorder and service connection for residuals related to kidney cancer; however, the Board finds that VA examinations are not necessary in order to decide these claims. In disability compensation (service connection) claims, VA's duty to assist includes providing a medical examination if the information and evidence of record (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, (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability, and (4) does not contain sufficient competent evidence to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds that a VA examination is not necessary for the disposition of these issues. As will be discussed in detail below, the weight of the evidence demonstrates that there is no in-service injury, disease, or event regarding the right kidney and no in-service injury, disease, or event relating to foot fungus. A VA examination is not necessary because there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection because there is nothing in service to which any current disabilities could be related by competent opinion. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (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"). See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). The STRs, private treatment records, lay statements, and photographs associated with the claims file provide a complete picture of the post-service onset and treatment of the Veteran's bilateral fungal foot disorder. The evidence of record also provides a complete picture of the existence of the Veteran's right kidney cancer, symptoms regarding the urogenital system in service, and symptoms since service separation. For these reasons, the Board finds that the evidence of record is sufficient to decide the appeal and no VA examination or opinion is warranted. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159, as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the appeal. 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; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) a current disability; (2) the disease or injury having been incurred in service; (3) a causal relationship between the current disability and the injury or disease incurred in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995)). In this case, a bilateral fungal foot disorder is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" in-service symptoms and post-service "continuity of symptomatology" under 38 C.F.R. § 3.303(b) do not apply. Kidney cancer (as a malignant tumor) is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions under 38 C.F.R. § 3.303(b) apply for service connection for kidney cancer. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and a chronic disease enumerated in 38 C.F.R. § 3.309 become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. No direct service connection compensation shall be paid if the disability is the result of the person's own abuse of alcohol. 38 U.S.C.A. § 1110. VA's Secretary has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See 68 Fed. Reg. 27,630 (May 20, 2003). In this regard, the Board observes that VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended to certain specific disorders, based upon extensive scientific research. See, e.g., Notices, 68 Fed. Reg. 27,630-41 (2003); 64 Fed. Reg. 59,232-243 (1999); 61 Fed. Reg. 57,586-589 (1996). The VA Secretary has published a list of specific conditions for which a presumption of service connection based on exposure to herbicides used in Vietnam during the Vietnam era is not warranted. As of May 2008, these included renal cancer. See Notice, 75 Fed. Reg. 32540-453 (2010). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that an appellant is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom, Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171 (1998). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive. 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"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the appeal or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against an appeal, in which case, the appeal is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for Bilateral Fungal Foot Disorder The Veteran contends that the bilateral fungal foot disorder began while he served in Vietnam, and, despite repeated treatment, the problem is reoccurring. After a review of all the evidence of record, lay and medical, the Board first finds that the Veteran has a current disability of a bilateral fungal foot disorder. In August 2006, the Veteran sought private medical treatment and reported that for years he had symptoms of bilateral fungal foot infection and discolored toe nails. In the August 2006 private treatment record, the Veteran was diagnosed with tinea pedis (fungal skin infection of the feet) and onychomycosis (fungal infection of the nail). In October 2006, the Veteran sought a follow-up private evaluation, during which, his private treating medical provider found that the prescribed treatment resolved the bilateral fungal infection of the feet, yet the fungal infection of the toe nails remained. In a November 2006 private treatment record, although the Veteran reported that he did not have any skin problems with his feet, the treating medical provider observed continued problems with the toe nails and surrounding skin and again diagnosed the Veteran with tinea pedis and onychomycosis. There were no additional medical treatment records or lay statements regarding the Veteran's bilateral fungal foot disorder after the November 2006 private treatment record until March 2012, where, in a statement attached to a Form 9, the Veteran stated that he developed the skin condition in Vietnam and, despite treatment, the symptoms always return and he still has the skin condition. The Board next finds that the weight of the evidence, lay and medical, demonstrated that the Veteran did not sustain an in-service injury or disease relating to a bilateral fungal foot disorder. Favorable evidence supporting a finding that the Veteran sustained an in-service injury or disease relating to a bilateral fungal foot disorder consists of the Veteran's lay testimony. In the Veteran's August 2006 private treatment record the Veteran reported that he had a bilateral fungal foot disorder for "years." In the September 2010 claim, the Veteran asserted that the STRs demonstrate that he has had a fungal foot disorder in service, and, in the March 2012 statement attached to a Form 9, the Veteran stated that his bilateral fungal foot disorder started in service and had continued since service. The evidence that weighs against a finding that the Veteran sustained an in-service injury, disease or event relating to a bilateral fungal foot disorder includes the STRs, which have little mention of any foot disorder and no mention of any fungal skin disorder of the feet. In the October 1962 service entrance examination, the Veteran reported a blister on his feet and it was noted that the Veteran had moderate pes planus (flat feet). In a September 1963 STR, the Veteran reported a rash in the pubic area. In an August 1964 STR, the Veteran checked "yes" for the "foot trouble" section; however, there was no elaboration as to the nature of the foot trouble. In a December 1964 STR, the Veteran sought treatment for a rash of the left buttock. In a January 1965 STR, the Veteran reported a genital rash. In an April 1965 STR, the Veteran reported a groin rash. Lastly, in the August 1965 exit examination, the Veteran indicated that he did not have any skin problems or problems with his feet. Although the Veteran's March 2012 statement indicated he has had an ongoing fungal foot disorder in service and since service, such is inconsistent with, and outweighed by, the lay and medical evidence of record. As noted above, the STRs show no indication that the Veteran sought treatment for any fungal skin condition of the feet or related any complaints or symptoms of foot injury or disease in service. The August 1965 service separation examination report reflects that the Veteran indicated that nothing was wrong with his feet. Following service separation in August 1965, the evidence of record shows no complaints, diagnosis, or treatment of a bilateral fungal foot disorder until August 2006. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of persistent and ongoing symptoms. For treatment purposes, however, the Veteran would be expected to give a full and accurate history to ensure proper care. The Board finds it unlikely that the Veteran would report of a foot blister upon service entry and would report different rashes during service, but not report symptoms of a bilateral fungal foot disorder, had the symptoms been present. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring); cf. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Fed. R. Evid. 803 (7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded) (cited in Buczynski). Although the Board finds the Veteran competent to testify regarding a bilateral fungal foot disorder in service, the Board finds the Veteran's statements to have limited credibility and therefore, limited probative value. Moreover, while the Board finds the Veteran competent to provide lay evidence regarding the onset of a bilateral fungal foot condition in service and the duration of symptoms since service, the Board affords little probative weight to the Veteran's August 2006 statement, September 2010 statement, and March 2012 statement, as the Veteran's own contemporaneous lay histories during service include his own denial of a fungal condition of the feet. Although the Veteran reported in the August 2006 private treatment record that he had a bilateral fungal foot disorder for "years," such characterization is too vague to demonstrate that the symptoms began over forty years ago during the Veteran's military service, especially in light of his own denial of injury, disease, or symptoms relating to a fungal infection during service. Similarly, the September 2010 and March 2012 statements are made over forty years after service separation. The absence of post-service findings, diagnosis, or treatment for over forty years after service is one factor that tends to weigh against a finding of an in-service injury, disease, or event relating to a bilateral fungal foot disorder. Given the lapse of time when specific recollections would be ostensibly difficult, coupled with the contemporaneous medical documentation indicating that there was not a bilateral fungal foot disorder in service, the Board finds that the Veteran's more recent assertion of a bilateral fungal foot disorder occurring in service is outweighed by other, more contemporaneous and more probative evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (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); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a bilateral fungal foot disorder; consequently, 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Residuals of Right Kidney Cancer and Removal In the September 2010 claim form, the Veteran initially contended that the right kidney cancer and subsequent removal was due to Agent Orange exposure during service in Vietnam. However, after the November 2010 denial of the claim on the basis that kidney cancer was not one of the enumerated diseases that is entitled to presumptive service connection, in a February 2011 statement, the Veteran then entered the new contention that the kidney cancer was due to asbestos exposure in service. Specifically, the Veteran states that he was exposed to asbestos while unloading ships in Vietnam, and that all of the ships he serviced in Vietnam were old and had asbestos in them. Additionally, the Veteran asserts that, although his personnel records indicate that he served as a clerk typist, from September 1964 to August 1965, he never did any administrative work while in Vietnam and he was actually a stevedore (cargo specialist), which required loading and unloading ships at the dock. He reported that while stationed in Vietnam he unloaded ships and supervised Vietnamese workers. The Veteran states that he was down in the ships for hours, worked "in the ships on all levels," and reported to Navy personnel; however, he states that he does not recall the name of the Navy unit. The Veteran asserts that the photos he has submitted demonstrate his ship-loading work in Vietnam. The Veteran states that he never smoked nor drank alcohol and, after the military, he worked as a stock clerk for American Airlines, and asserts that he was not exposed to any cancer-causing agents after service. The Veteran had service in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to herbicides in service. The Veteran's DD Form 214 indicates that the Veteran had foreign service experience and section five of the DD Form 214 states that the Veteran served in Vietnam from August 1964 to August 1965; thus, the Veteran is presumed to have been exposed to an herbicide agent during active service. After a review of all the evidence of record, the Board first finds that the Veteran has a current disability of residuals from right kidney cancer and right kidney removal. The Veteran's private treatment records from November 1997 establish that the Veteran was diagnosed with a cystic renal carcinoma which comprised roughly fifty percent of the right kidney. The November 1997 private treatment record reveals that the Veteran's right kidney was surgically removed as a result of the cancerous growth. The Board finds, that the Veteran does not have any of the diseases enumerated in 38 C.F.R. § 3.309(e), as kidney disease is not one of the presumptive diseases for herbicide exposure. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Thus, there is no presumption of service connection based on herbicide exposure for the kidney cancer and the resulting kidney removal. See 38 C.F.R. § 3.309(e); see also Notice, 75 Fed. Reg. 32540-453 (2010). Regardless, in Combee v. Brown, the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). As such, the Board must not only determine whether the Veteran has a disability which is recognized by VA as being etiologically related to prior exposure to herbicide agents that were used in Vietnam, see 38 C.F.R. § 3.309(e), but must also determine whether the current disability is the result of active service under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(d). After a review of all the evidence of record, lay and medical, the Board finds that the Veteran's kidney cancer did not manifest chronic symptoms in service, did not manifest continuous symptoms after service, and did not manifest within one year of service separation, including to a compensable degree. The STRs do not reveal any complaints of, treatment for, or diagnosis of, kidney cancer or symptoms of kidney cancer. Although the STRs reveal treatment for symptoms relating to the urogenital system, the August 1965 service separation examination notes that the gonorrhea was adequately treated. There is no evidence of record to demonstrate that any symptoms of the urogenital system persisted since service separation in August 1965. Moreover, the Veteran does not contend that he had symptoms of kidney cancer in service or for many years after service. Instead, he asserts that the kidney cancer is related to the presumed exposure to herbicides in Vietnam. With respect to the Veteran's assertions regarding the relationship of his kidney cancer to his service, 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 on such complex disorders as kidney cancer. See Jandreau at 1372 (recognizing a lay person is not competent to identify a disorder as complex as cancer); see also Barr, 21 Vet. App. at 312 (lay testimony is competent to establish the presence of observable symptomatology). As a lay person, he is without the appropriate medical training and expertise to offer an opinion on a medical matter, including the diagnosis and etiology of the kidney cancer. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Such conditions as kidney cancer are diagnosed not by symptoms alone but by specialized physical examination by a medical professional, and rendering a diagnosis and an etiology opinion would require knowledge of the various causes or risk factors for kidney cancer, and knowledge of periods of incubation or disease processes. The questions of diagnosis and causation, in this case, involve complex medical questions that the Veteran is not competent to address. Jandreau at 1372. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran's kidney cancer and active duty service herbicide exposure, including no credible evidence of chronic symptoms of kidney cancer in service, of kidney cancer to a compensable degree within one year of service separation, continuity of symptomatology of kidney cancer since service, or medical nexus to service. With regard to the Veteran's contention that the kidney cancer is related to asbestos exposure, 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. High exposure to respirable (airborne) asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases 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, 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 STRs, service personnel records, and by statements by the Veteran regarding post-service occupation. It should be noted that the pertinent parts of the Manual guidelines on service connection in asbestos-related cases must be considered by the Board in adjudicating asbestos-related claims. See VAOPGCPREC 4-2000. The Board points out that the Manual provisions do not create a presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F. 3d 1377 (Fed. Cir. 2002). Based upon a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran was not in fact exposed to airborne asbestos during service, and there was otherwise no in-service injury or disease of the kidney during service. The Veteran is competent to report in the February 2011, April 2011, January 2012, March 2012 Statements that, contrary to his personnel records which indicate that he served as a clerk typist, from September 1964 to August 1965, he actually worked on docks loading ships, which required that he spend hours inside ships in Vietnam. In March 2012, the Veteran submitted several photos, which he asserts show him working on a dock in Vietnam and support his contention that he spent time inside of ships to load them. The Veteran also reported in the April 2011 Statement that he had never smoked or consumed alcohol and, after the military, he worked as a stock clerk for American Airlines. Notwithstanding the Veteran's assertion of loading ships in Vietnam, an occupation that requires merely being present on the loading area of a ship for hours at a time, such as the dock loading job described by the Veteran, is insufficient to establish that the Veteran was required to enter asbestos laden section of older U.S. ships so as to expose the Veteran to airborne asbestos. As noted above, subpart ii of M21-1MR Part IV lists the major types of occupations involving exposure to asbestos, such as work in shipyards, insulation work, demolition of old buildings, construction, manufacture and servicing of friction products, manufacture and installation of materials containing asbestos. Subpart ii of M21-1MR Part IV also describes that the deleterious effects of asbestos occurs when they break down into tiny dust particles and are either inhaled or swallowed, in other words, airborne asbestos. Such listed occupations when read together with VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C specifically include occupations that involve actions which break up asbestos into tiny particles through demolition and friction with asbestos containing materials or through the construction of materials (such as building ships in shipyards) which would entail the breakdown of asbestos into tiny particles. Cargo delivery entails loading cargo to the external areas of the ship, while the crew would transport the cargo to the interior of the ship. The Veteran's stated duties of loading and unloading cargo from the ships is not similar to the occupation duties listed in Subpart ii of M21-1MR Part IV in a manner that would provide exposure to airborne asbestos. Moreover, the Veteran's conclusory lay statements that there was asbestos on the ships he worked is not competent to support that there was, in fact, airborne asbestos on the ships. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service). The Board next finds that the Veteran's right kidney cancer and right kidney removal is not etiologically related to service. Kidney cancer (as a cancer of the urogenital system) is a type of cancer that can result from inhalation of asbestos fibers. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." The Veteran's STRs note treatment involving the urogenital system from 1964 to 1965. A September 1964 STR noted that the Veteran had yellowish-white urethra discharge for three days and complained of dysuria in addition to a single genital lesion. It was noted that his last venereal exposure was four days prior and the Veteran was diagnosed with gonorrhea. In an October 1964 STR, the Veteran complained of "tingling" symptoms on voiding without dysuria and was diagnosed with a urinary tract infection. A November 1964 STR reflects a follow-up examination for a urinary tract infection and the Veteran reported that the symptoms were gone. In a subsequent November 1964 STR, the Veteran reported urethral discharge for two days and was prescribed treatment for gonorrhea. In the December 1964 STRs, the Veteran sought treatment for urethral discharge and the notation states that the smear test showed the presence of gonorrhea. In a March 1965 STR, the Veteran complained of urethral discharge and there is a separate March 1965 smear test with a note stating that the Veteran has a communicable disease. In the August 1965 separation examination, the genitourinary system is checked with a note that the Veteran has a venereal wart on the penis and noted that the Veteran had gonorrhea three times and was adequately treated. Although the Veteran's STRs reveal treatment for symptoms relating to the urogenital system, the August 1965 separation examination notes that the gonorrhea was adequately treated. There is no evidence of record to demonstrate that any symptoms of the urogenital system persisted since service separation in August 1965. Thus, in addition to the above finding that the Veteran was not exposed to airborne asbestos during service, the Board further finds that the evidence of record fails to demonstrate that the Veteran's right kidney cancer and right kidney removal is etiologically related to service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for right kidney cancer and right kidney removal; consequently, 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a bilateral fungal foot disorder is denied. Service connection for residuals of right kidney cancer and right kidney removal, including as a result of Agent Orange exposure or asbestos exposure, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs